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Academic, Professional, & General
Blackstone's Criminal Practice 2006
Updates
Part F
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Blackstone's Criminal Practice 2006

Part F

Updates to Part F

30 March 2007

F1.10, D14.27 No Case to Answer: Circumstantial Evidence

Danells (Michael) [2006] EWCA 628 was an appeal against a conviction for murder. The circumstantial evidence against the appellant was strong. The trial judge rejected a submission of no case. His submission was that this was a case of circumstantial evidence in which the evidence, taken at its highest, was such that a jury properly directed could not properly convict on it because the circumstances, while consistent with the prosecution case, were also consistent with the defence case as disclosed in interview by the appellant.

The Court holds that the decision in Moore (1992, unreported), whilst supporting the proposition that the inference there invited on behalf of the appellant was a reasonable one about which a jury was bound to have a doubt, does not support the proposition that the mere fact that the version of the facts contended for by the appellant was a logical possibility requires the trial judge to withdraw the case from the jury. The proffered version may be logical but so implausible that a jury would be justified in rejecting it. At the end of the prosecution case the judge is not required to withdraw a case from the jury where the circumstantial evidence for the prosecution is strong and the logically possible defence case is one which a reasonable jury would be entitled to reject: Galbraith [1981] 1 WLR 1039 followed; McGreevy v DPP [1973] 1 WLR 276 considered; Moore (1992 unreported) distinguished.

Click here for full text of the judgment.

Author: MH

September 2006

F1.9 Relevance

By the Police and Criminal Evidence Act 1984, s. 74(1), the fact that a person other than the accused has been convicted of an offence by a UK court is admissible for the purpose of proving, where this is relevant to any issue in the proceedings, that he committed that offence. A statement made by a person who has since died (including an admission of criminal liability) may meanwhile be admissible under the Criminal Justice Act 2003, ss. 114 and 116, to prove any fact which he could have proved through oral testimony (although, in contrast to the PACE, s. 74, there is no presumption that such a statement is true). These provisions do not, however, determine when such evidence is relevant in the first place, and it is clear from Tinsley [2006] EWCA Crim 2006 that the concept of relevance must still be applied quite strictly.

The appellant in Tinsley was charged with sexual offences against his niece, who had also complained of similar abuse allegedly committed by her grandfather and step-grandfather. Her grandfather died shortly after admitting his guilt to the police. Her step-grandfather pleaded guilty to indecent assault. The fact that the complainant had already been twice vindicated must significantly have boosted her credibility in the eyes of a jury, but relevance to a collateral issue such as witness credibility is something distinct from relevance to an issue in the proceedings. The Court of Appeal accordingly ruled that none of this collateral evidence was admissible. Latham LJ said (at [12]-[13]):

The general principle is that for evidence to be admissible as relevant, it must be logically probative (or disprobative) of a fact in issue between the parties. The question is therefore, what was it that the Crown intended to prove by putting this material before the jury? . . . There was no suggestion that the appellant was involved together with either the grandfather or the step-grandfather . . . It follows that the only purpose for which the material could have been put before the jury was to establish that because she had told the truth in relation to [them], the jury could be satisfied that she was telling the truth in relation to the complainant. But the mere fact that the complainant has told the truth on other occasions, even if in the same context, cannot be logically probative of the facts that she alleges in relation to the appellant. Whilst it is tempting to say that it is relevant in the sense that the complainant's credit was 'in issue' that, in our judgment, cannot open the door to evidence being called simply in order to support the argument that the witness is a credible witness. It is, in effect, a form of 'oath helping', which has never been permissible as a ground for admitting evidence.

The Court did not rule out the possibility that the evidence might have been admissible as explanatory evidence under s. 100 of the 2003 Act but, since no application for leave to admit under that section had been made at trial, it was not prepared to deal with the issue.

Author: MH

February 2006

F1.12 Lies

Gultutan [2006] All ER (D) 230 (Jan), 30 January 2006, CA confirms that a Lucas direction is not needed in cases where there is a simple conflict between the prosecution's evidence and that of the defendant and his witnesses. The mere fact that the defendant's alibi was precise and supported by witnesses did not make it more likely that a jury would treat a rejection of such an alibi as supporting the prosecution case.

Author: MH

28 April 2006

F2.4; F13.3 Discretion to exclude confession; good character evidence

Simmons and Greene v The Queen [2006] UKPC 19 (on appeal from the Bahamas) reiterates established propositions concerning the discretion to exclude evidence in a context in which the defendant enjoys a constitutional right to the services of a lawyer at the stage of police interrogation. A positive and repeated denial of that right by the police should result in exclusion of the statement: one cannot know whether the lawyer would have advised the suspect to confess and still less the precise terms in which such a confession statement would have been made. The potency of such a confession is not necessarily a factor in favour of its admission. The Board states (at [26]): 'If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion'. Mohammed v The State [1999] 2 AC 111 at [123-4] followed. Here, however, the strength of the other evidence was such that the defendant Simmons, whose statement was in issue, would have been convicted anyway.

The defendants also contended that they had wrongly been deprived of a good character direction. The Board was somewhat sceptical whether they were of good character so as to justify such a direction. On the facts, however (the two accused took a shotgun to an Island in order to break, enter and steal from commercial premises and shot and killed a police officer) nothing could have been said concerning propensity. Nor could such a direction have assisted on credibility (and Simmons did not give evidence). More interesting still is the reiteration by the Board of indications in earlier judgments that a failure to give a good character direction may not render a conviction unsafe: their lordships thus state that, whatever may previously have been supposed, the cases where plainly the outcome of a trial would not have been affected by the absence of a good character direction may not be so rare: Vijay Bhola v Trimidad and Tobago [2006] UKPC 9 and Gilbert v The Queen [2006] UKPC 15 referred to. In the light of these comments, it is not unlikely that Fulcher [1995] 2 Cr App R 251 will ultimately be qualified by reference to whether a failure to give such a direction rendered the conviction unsafe having regard to the strength of the case against the defendant. In the instant case, the case against the defendant was overwhelming.

Click here for the full text of the judgment in Simmons and Greene v The Queen.

Author: LL

July 2006

F3.1 Legal and Evidential Burdens

The basic distinction between a legal and evidential burden of proof is neatly illustrated by DPP v Uddin [2006] EWHC 1523 (Admin), in which the magistrates' court first rejected a submission of no case to answer at the end of the prosecution's evidence and then, when the defendant offered no evidence in reply, acquitted him on the basis that the case had not been proved beyond reasonable doubt. The prosecution appealed on the basis that this was an illogical ruling, but the Divisional Court rightly disagreed. There was no contradiction or illogicality in the magistrates' ruling. In rejecting the submission of no case, they had merely ruled that the prosecution evidence was capable, if believed, of proving the case. When they retired to consider their verdict, they would decide for the first time whether they were indeed satisfied to the criminal standard of proof. McCombe J said:

It is often helpful, in my view, in considering such points to recall the differing roles of the judges of law and of fact respectively in a criminal trial. In considering the submission of no case, the judge of law has to ask whether there is sufficient evidence upon which the judges of fact, properly directed, are entitled to convict. They are not deciding that the tribunal of fact must convict upon such evidence. If the judge decides that there is such evidence the case proceeds. The defence calls such evidence as they wish. If the defendant fails to give evidence the justices or the jury (as the case may be) are entitled to consider, if they think fit, that those facts are additional support for the prosecution case. A similar adverse inference may be drawn against the defendant from a failure to respond to questions in interview. However, the justices or jury must not convict wholly or mainly on the strength of such a conclusion: see section 38(3) of the 1994 Act. Still less are they bound to convict on the basis of such matters.

Author: MH

February 2006

F4.16 Children and Persons of Unsound Mind

The problems that may be caused by attempts to admit evidence from very young children were considered by the Court of Appeal in Powell [2006] EWCA Crim 03. The witness in this case was a child aged 3½ who had complained of a very serious sexual assault (involving cunnilingus) allegedly committed by the appellant. She had made a complaint within a short time of the alleged incident, and had appeared competent when interviewed on video, but her memory seemed to have deteriorated by the time of the trial itself and she had been unable to deal intelligibly with the defence's attempt at cross-examination.

The Court of Appeal quashed his conviction, even though it was supported in some respects by DNA evidence. Scott Baker LJ said:

'[33] . . . While evidence in chief through the pre-recorded video indicated the child just about passed the competence threshold, the position was different when one looked at the whole of her evidence including the largely abortive attempt at cross-examination. What is relevant is the complainant's competence to give evidence at the time of the appellant's trial. It may be it was due to the lapse of time and lack of memory that the complainant was unable to understand the questions or give answers to them which could be understood. One simply does not know. The problem is that her answers simply were not intelligible in the context of the case. She was not, in our view, a sufficiently competent witness for the defence to be able to put its case. The onus of proof was on the Crown to establish competence and they failed to discharge it.

[34] In our judgment the judge should have reconsidered the question whether the complainant was a competent witness at the conclusion of the complainant's evidence. Had she done so she would, or should, have concluded that she was not and then withdrawn the case from the jury.'

It is possible that the outcome of the case would have been more satisfactory had the trial not been delayed for several months. Scott Baker LJ was highly critical of these delays:

'[41] Explanations can be found for each element of the delay in this case. However the plain fact is that where a case depends on the evidence of a very young child it is absolutely essential (a) that the ABE [achieving best evidence] interview takes place very soon after the event and (b) that the trial (at which the child has to be cross-examined) takes place very soon thereafter. As the expert evidence in this case showed, very young children simply do not have the ability to lay down memory in a manner comparable to adults. Looking at this case with hindsight, it was completely unacceptable that the appellant should have been tried for an offence proof of which relied on the evidence of a 3" year old when the trial did not take place until over nine months had passed from the date of the alleged offence. Special efforts must be made to fast-track cases of this kind and it is simply not an option to wait weeks for example for forensic evidence to become available.

[42] In our judgment this conviction is not safe. The child was very young, just 3". That was not in itself necessarily an insurmountable obstacle for the prosecution. Had she been interviewed appropriately and promptly and had the trial taken place very soon after the event it is possible that when she was cross-examined by the defence she would have given intelligible answers that indicated she was a competent witness. Unfortunately the answers that she gave indicated that she was not. Competency to give evidence relates to the whole of a witness's evidence and not just to part of it. The judge should have stopped the case at the conclusion of the complainant's evidence.'

Author: MH

March 2006

F4.16 Children and Persons of Unsound Mind

The ruling of the Court of Appeal in Powell [2006] EWCA Crim 03 was considered in last month's update. It may be contrasted with that of the same court in MacPherson [2005] EWCA Crim 3605 (but actually decided in July 2005) where applying much the same test in much the same kind of case, a somewhat older child witness was found to have been competent to give evidence. There does not seem to have been any problem in this case of the kind that arose in Powell, where the child appeared to be an adequate witness on the videotape interview but proved unable to deal with the simplest of questions in cross-examination.

Author: MH

January 2006

F6.14 Recent Complaints

In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. See F16.17 below.

Author: MH

July 2006

F6.14 Recent Complaints

The impact of the CJA 2003, s. 120, on the law governing the admissibility and effect of evidence concerning recent complaints was examined by the Court of Appeal in O [2006] EWCA Crim 556.

It was emphasised that, although s. 120(5) and (7) cover ground very similar to that covered by the old common-law rules, they do not merely codify those rules, but must instead be seen as freestanding provisions which provide their own criteria for admissibility and are not governed by old common-law restrictions. It is clear, for example, that the new rules are not confined to complaints in proceedings for alleged sexual offences, and evidence of matters stated in such complaints may be admissible as evidence of fact, and not merely as evidence of a witness's consistency.

Less obviously, the admissibility of a complaint under s. 120 is not limited to the first complaint made by a victim (eg, he may complain first to X and then, some time later (but still as soon as could reasonably be expected) to Y. If the second complaint has some relevance over and above that of the first, it may be right to admit it under s. 120.

The court nevertheless accepted that it may be necessary in some cases for a judge to restrict evidence of 'complaint upon complaint' which might be merely self-serving and unfair to the defendant.

Author: MH

7 April 2006

F7.10, D15.3 Cross-examination-duty of counsel; Accused as witness

Ebanks v The Queen [2005] UKPC 16 considers counsel's duty in circumstances where his client wishes to challenge the veracity of police witnesses but refuses to give evidence himself. This was a conviction for murder in which the defendant insisted that a statement which he allegedly made was a fabrication and that the police evidence was a lie. Counsel did not, on the voir dire, accuse police officers of lying and the Privy Council concluded that there would have been no basis for so doing. The Board nonetheless considered the authorities relating to counsel's duty when faced with a client who accused the police of lying but who refuses to give evidence. The Board approved the statement in Blackstone's Criminal Practice, F7.10 that, if a client with a very bad record refuses to testify, counsel, after warning his client that the judge will probably comment adversely on his failure to support the allegations by evidence, must adhere to his client's instructions and cross-examine accordingly. Indeed, the duty of counsel so to cross-examine may not, having regard to the terms of the Board's judgment, be restricted to cases in which the accused has a very bad record: it may describe counsel's duty in any case in which the defendant accuses the police of lying. The Board's judgment (at [29]) is not entirely unambiguous, but it is submitted that the above statement reflects the purport of it.

Two further matters are noteworthy. The first is the reiteration of the well-known rule of practice that counsel should ensure that his brief is endorsed where the defendant gives instructions that he will not give evidence. The second is to hold that an appellate court is not bound to proceed on the defendant's version of events in circumstances where no such endorsement is recorded. The Court's duty is simply to resolve the issues as best it may.

Click here for the full text of the judgment.

Author: LL

June 2006

F7.12 Protection of Complainants in Proceedings for Sexual Offences

By the Youth Justice and Criminal Evidence Act 1999, s 63(1), a 'complainant', in relation to any offence (or alleged offence) to which part II of that Act applies means a person against or in relation to whom the offence was (or is alleged to have been) committed (ibid s 63(1)); but 'the complainant' for the purposes of s 41 means the alleged victim of the offence with which D is currently charged, and does not include the alleged victims of previous or subsequent offences whose evidence may be admissible to prove D's propensity under the Criminal Justice Act 2003, s 101. But although such a witness may lack direct protection under s 41, any attack on her character would be subject to the restrictions imposed by the Criminal Justice Act 2003, s 100, and where s 100 is not engaged, other general rules of evidence would apply, which would be informed by the general principles underlying s 41 of the 1999 Act. See M [2006] All ER (D) 164 (May).

Author: MH

August 2006

F7.12 Protection of Complainants in Proceedings for Sexual Offences

The right of the defence in a sex case to cross-examine a complainant as to allegedly false complaints made by that complainant on other occasions was considered once again by the Court of Appeal in V [2006] EWCA Crim 1901.

It was clear, said the court, that any cross-examination genuinely directed towards establishing that the complainant had made a previous false complaint about a sexual matter falls outside s. 41 as long as it relates to the alleged lies rather than to the sexual behaviour itself. The defence must however have a proper evidential basis for making such an assertion (see T; H [2002] 1 All ER 683).

The court emphasised that the Criminal Justice Act 2003, s. 100 must be considered, because such an allegation will necessarily amount to evidence of bad character. Cross-examination as to an allegedly false sexual allegation may however require a ruling in relation to the Youth Justice and Criminal Evidence Act, s. 41, as well as leave under the Criminal Justice Act 2003, s. 100.

Author: MH

21 October 2005

F7.19 Finality of Answers - Collateral matters

The decision of the High Court of Australia in Nicholls v The Queen; Coates v The Queen, [2005] HCA 1 contains a very full survey and analysis of the relevant Australian and English decisions on the topic. A majority of the High Court concluded that the collateral evidence rule is more than a rule of convenience in case management. McHugh J regarded it, however, as a flexible rule of convenience. The decision is too elaborate to be summed up in a short note. It is of considerable interest on the topic.

Click here for the full text of the judgment.

Author: LL

10 May 2006

F8.26; B4.25; B4.34; Theft: Appropriation and Dishonesty; Bankers' Books

In Wheatley and Penn v Commissioner of Police of the British Virgin Islands [2006] UKPC 24 the Privy Council held, first, that the disbursement of funds held to the order of government constitutes appropriation for the purposes of theft and, secondly, that an intention to cause loss is not a necessary element in dishonesty.

Wheatley was Financial Secretary to the BVI government. He had a direct interest in two enterprises owned by Penn, P&W Heavy Equipment, and Accurate Construction. Penn built a substantial wall to protect the property of one Alice Thomas from erosion. Following heavy rain, that wall fell down in one piece. The government agreed to replace the wall. Two contracts were entered into: each totalled less than $60,000 so apparently falling within the category of petty contracts though in aggregate they fell outside that category. Wheatley and his staff signed the requisite purchase orders and payment vouchers. Accurate then paid $9,400 to Wheatley's consulting business in relation to these transactions.

On these facts their lordships held that Wheatley had appropriated property belonging to the government. They also held that he had done so dishonestly. On the first issue their lordships remark that appropriation has been given a very wide meaning and the disbursement of funds belonging to government falls within it. Of the second issue, their lordships state (at [11]):

"It is certainly true that in most cases of theft there will be an original owner of money or goods who will be poorer because of the defendant's conduct. But in one of the two cases in R v Morris the defendant was arrested before paying the reduced price for the goods, so that the supermarket suffered no loss, and in R (on the application of A) v Snaresbrook Crown Court [2001] All ER (D) 123, para 25, it was accepted that the alleged theft was carried out for a purpose which could financially benefit the company. In providing that an appropriation may be dishonest even where there is a willingness to pay, section 204(2) [of the Virgin Islands Criminal Code] shows that the prospect of loss is not determinative of dishonesty."

Having regard to the manoeuvres in which Wheatley engaged, there was ample evidence of dishonesty on his part.

Two minor points may be noted. First, their lordships note the strictness with which English courts have construed statutory provisions such as that in the Local Government Act 1972, s. 94, which strike at potential conflicts of duty and interest. Secondly, their lordships hold that an order to inspect under the Bankers Books Evidence Act 1879 is not a precondition to the reception into evidence of an entry in such books. An order for inspection would, for example, clearly be unnecessary if a customer waived his rights to confidentiality and the bank agreed to inspection and copying of its books.

Click here for full text of the judgment

Author: LL

June 2006

F9.14 Privilege against Self-incrimination

In C plc and another v P (Secretary of State for the Home Office and another intervening) [2006] EWHC 1226 (Ch), Evans-Lombe J adopted a potentially revolutionary approach to the privilege against self-incrimination in light of the Human Rights Act 1998. The effect of this judgment, if followed, is to undermine the privilege insofar as it applies to pre-existing documents or items of real evidence that a party to civil proceedings is required to produce or disclose under a search order.

In this civil case, a search order was made in an action in which the company sought to sue the respondent for breach of confidence and infringement of copyright. The respondent advised the parties and the supervising solicitor appointed pursuant to the order that the respondent would rely on his privilege against self-incrimination in respect of any material which the search disclosed. The search in fact revealed large quantities of child pornography, and the question that arose was whether, in view of his claim to privilege, this material could properly be disclosed to the police.

Evans-Loombe J noted that this kind of problem could not have arisen had the material in question been seized in the course of a criminal investigation, and he regarded this difference as anomalous. The privilege was on the face of it supported by extensive authority (including the decision of the House of Lords in AT & T Istel v Tully [1993] AC 45), that would ordinarily have been binding upon him, but the learned judge took the view that the enactment of the Human Rights Act 1998 enabled him to depart from those precedents and reject the privilege, so as to permit the disclosure of the incriminating evidence to the police.

This seems, with respect, a particularly bold approach, given the recent ruling of the House of Lords in Price v Leeds City Council [2006] UKHL 10, in which Lord Bingham said (at [43] - [44]:

. . . Certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.

There is a more fundamental reason for adhering to our Domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the Domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.

Lord Bingham did nevertheless recognize that exceptional cases might arise in which Convention principles could justify a departure from precedent. In D v East Berkshire Community NHS Trust [2004] QB 558, for example, the Court of Appeal held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 was no longer binding on them, because the Human Rights Act 1998 had undermined the policy consideration that largely dictated the House of Lords decision.

Evans-Lombe J considered the instant case to be exceptional in this sense, because the public's right under Articles 2, 3 and 8 of the Convention to be protected from the effect of criminal activity, when balanced against the respondent's privilege, required the court to modify the respondent's right so as to enable the material to be so transferred; and in none of the earlier cases that would otherwise have been binding on him had the Convention point been taken.

The idea that a person's individual Convention rights must be balanced against wider public interest considerations is not of course new, but here it is remarkable that a well established right to claim privilege is being removed in the wider public interest, so that criminal behaviour can be detected and punished.

A first instance ruling is most unlikely to represent the last word on this issue. Indeed, when making the order for disclosure of the material to the police, the learned judge gave the respondent permission to appeal and stayed the order pending the 'reasonably urgent' prosecution of any such appeal. We must therefore await further developments.

Author: MH

September 2005

F10.3 Expert opinion evidence

In Harris [2005] EWCA Crim 1980, the court was concerned with the various scientific opinions concerning the causes of Non Accidental Head Injuries. That aspect of it is too complicated to be summarised here.

The judgment is also valuable as listing the obligations of an expert witness. The factors set out should, the court concludes, assist in bringing developments in scientific thinking before the court, even though these developments remain at the stage of an hypothesis (see [271]). The true status of the expert's evidence must be frankly indicated to the court (Clarke [1995] 2 Cr App R 425 and The Ikerian Reefer [1993] 2 Lloyds Rep 68).

It would seem that the approval accorded to Frye v United States 293 F 1013 (1923) at Blackstone's Criminal Practice, F10.5 may need to be reconsidered.

Giving the judgment in the case, Gage LJ made the following observations of general interest:

"269. Whether or not there has been a failure by the criminal justice system to control and manage expert evidence we are reluctant to give any new guidance on expert evidence arising from the facts of these cases. It may, however, be helpful to re-iterate current guidance.

270. As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr App R 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates, developments in scientific thinking and techniques should not be kept from the court. Further, in our judgment, developments in scientific thinking should not be kept from the court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert's evidence is frankly indicated to the court.

271. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an expert witness summarised by Cresswell J in the Ikerian Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst other factors the following, which we summarise as follows:

  1. Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
  2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.
  3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.
  4. An expert should make it clear when a particular question or issue falls outside his expertise.
  5. If an expert's opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.
  6. If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.

272. Wall J, as he then was, sitting in the Family Division also gave helpful guidance for experts giving evidence involving children (see Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181). Wall J pointed out that there will be cases in which there is a genuine disagreement on a scientific or medical issue, or where it is necessary for a party to advance a particular hypothesis to explain a given set of facts. He added (see p. 192):

"Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum."

We have substituted the word jury for judge in the above passage.

273. In our judgment the guidance given by both Cresswell J and Wall J are very relevant to criminal proceedings and should be kept well in mind by both prosecution and defence. The new Criminal Procedure Rules provide wide powers of case management to the Court. Rule 24 and paragraph 15 of the Plea and Case Management form make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons. In cases involving allegations of child abuse the judge should be prepared to give directions in respect of expert evidence taking into account the guidance to which we have just referred. If this guidance is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence which the jury will have to consider."

Click here for the full text of Harris.

Author: MH

^ Return to the top

December 2005

F10.3 Expert Opinion Evidence

Puaca [2005] EWCA Crim 3001 is the latest in a long line of cases in which the safety of a conviction has rested largely or wholly on bitterly contested expert evidence. After Cannings [2004] EWCA Crim 01, it seemed, briefly, that caution had at last taken hold and that the courts now recognised the impossibility of requiring juries to distinguish between the relative credibility or weight of conflicting expert opinion. As the court observed in Cannings:

'Where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence . . . which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.'

But in Harris [2005] EWCA Crim 1980 and Kai-Whitewind [2005] EWCA Crim 1092 the Court of Appeal has in effect retreated from that position, confining the Cannings observations to their own particular facts, rather than accepting their underlying good sense. Juries may therefore continue to convict of murder in cases where at least some expert witnesses support that conclusion, even where a battery of equally eminent expert witnesses (four in Kai-Whitewind, including a professor of forensic pathology and consultant pathologist to the Home Office) opine that such a conclusion is either wrong or uncertain. It is not necessary for the prosecution experts' views to be supported by other evidence, such as a confession or even evidence of a motive (although in Kai-Whitewind the appellant may have harmed her case by failing to testify in her own defence). The jurors may have no expertise or qualification that might enable them properly to discern which of the experts are right, but that does not seem to matter.

Puaca at least establishes that an appeal may be allowed where the prosecution expert's conclusions were misleadingly presented and not founded in such a way that they could be safely relied on by the jury. Evidence that is 'consistent with asphyxia', for example, may not be inconsistent with other causes of death, and evidence of asphyxia does not necessarily mean evidence of deliberate suffocation, but poorly presented evidence might give that impression.

Hooper LJ, giving the judgment of the court, said:

'A post-mortem report fulfils a number of functions. It guides the police in their investigations. It is likely that it will be considered in pre-trial proceedings and applications such as an application for bail or legal assistance. It is the basis of the expert's evidence at trial. As such the opinion of the pathologist must, as the Practice Guidelines of the Policy Advisory Board for Forensic Pathology make clear, be "objectively reached" and have "scientific validity". The duty of all pathologists, whoever instructs them, is, in our view, to comply with the obligations imposed on expert witnesses from the start. It is wholly wrong for a pathologist carrying out the first post-mortem at the request of the police or coroner merely to leave it to the defence to instruct a pathologist to prepare a report setting out contrary arguments. The case law as to the duties and responsibilities of experts is clear. As Cresswell J said in a much cited passage in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The "Ikarian Reefer") [1993] 2 Lloyd's Rep. 68 [also cited more extensively by the Court of Appeal in Harris - see the September update]: "An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion."'

Author: MH

April 2006

F10.3 Expert Opinion Evidence

Harris and others [2005] EWCA Crim 1980 and Kai Whitewind [2005] EWCA Crim 1092 (see the January 2006 Bulletin at pp 11-13) and the duties of expert witnesses generally were considered in Bowman [2006] EWCA Crim 417. The Court of Appeal in that case offered the following guidance, 'in order to underline the necessity for expert reports to be prepared with the greatest care':

175. On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled "Disclosure: Expert's Evidence and Unused Material - Guidance Booklet for Experts". The instructions contained in this booklet were "designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team". The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence.

176. We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times.

177. In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report:

  1. Details of the expert's academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.
  2. A statement setting out the substance of all the instructions received ([whether] written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.
  3. Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert's supervision.
  4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert's opinions and any points which should fairly be made against any opinions expressed should be set out.
  5. Relevant extracts of literature or any other material which might assist the court.
  6. A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.
  7. Where on an exchange of experts' reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

Author: MH

5 June 2006

F10.5 Childhood memories: expert evidence>

Snell and Wilson [2006] EWCA Crim 1404 explores the limits of expert evidence in relation to childhood memories discussed in JH [2005] EWCA Crim 828.

In the first of these cases the victim, C (now an adult), gave evidence that he was abused between the ages of 6 and 8. In the second case the victim, S (again an adult), gave evidence of abuse occurring when she was aged between 3 and 11 years; in this instance the defendant was acquitted of one count relating to when she was 3 years old.

The Court concluded that there was nothing to suggest that C"s mental capacity and maturity did not reflect his true age. The Court, having heard evidence from an expert, Professor Conway de bene esse, as to childhood memory concluded that it was inadmissible. It did not relate to very early childhood memories nor did the accounts given by the two victims descend into such remarkable detail as to suggest that they could not be true memories. Early childhood memories apart, where special considerations may apply, juries are capable of assessing whether recollection of events occurring in childhood is accurate or not.

It would seem that Professor Conway, who relied on statements rather than a transcript of evidence given at trial, was misled because he failed to appreciate that the coherent version given in the witness statement reflected a process by which a coherent narrative sequential account is provided. Memory research, the Court holds, should only be admitted in exceptional circumstances. The Court thus concludes: "Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate. Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted. Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address "the very practical issues" which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care. That is why the court in R v JH: R v TG emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research."

Author: LL

January 2006

F11.1 Proof of Convictions and Acquittals

See Pattison v DPP [2005] EWHC 2938 (Admin), (examined at C3.39 above).

Author: MH

April 2006

F11.1 Proof of Convictions and Acquittals

Pattison v DPP [2005] EWHC 2938 (Admin) (see the January monthly update at C3.39) was considered by the Court of Appeal in Burns [2006] EWCA Crim 617, in which it was argued on behalf of the appellant that a defendant could not be identified as the person previously convicted merely on the basis of similarity between his name and date of birth and those recorded in the relevant memoranda of convictions, or such other material as was relied on. A third factor, such as the address of the person in question, was, it was argued, required in order to provide even prima facie evidence of previous convictions.

The court was unable to accept that proposition. Rose LJ said (at [17]):

It cannot, as it seems to us, be a matter of law as to what is capable of giving rise to prima facie evidence of identification in this context. Similarity in name and date of birth between a memorandum and a defendant may or may not amount to prima facie proof. Each case must depend upon its own facts and upon the material which is available. For example, if a defendant has an extremely common name and the date of birth on a memorandum is not precisely the same as that of the defendant before the Court, it may well be that such a date of birth and name on a memorandum would not be properly admissible as being capable of proving identity. On the other hand, if a defendant has a highly unusual name, consisting of many different component parts, it may or may not be necessary also to have recourse to identical dates of birth in order to provide prima facie evidence. Everything must depend upon the circumstances of the particular case.

Nothing that was said in Burns was intended to refer to the Criminal Justice Act 2003, s 117, by which questions as to the admissibility of business or official documents are treated as questions of law: see Lewendon [2006] EWCA Crim 648, [2006] All ER (D) 10 (Mar). Burns appears to be concerned with the sufficiency of the evidence in question, rather than with admissibility per se.

Author: MH

December 2005

F12.1 The Criminal Justice Act 2003

In Renda and other appeals [2005] EWCA Crim 2826, the Court of Appeal (in a judgment given by Sir Igor Judge P) made the following general observations as to the new regime introduced by the Criminal Justice Act 2003:

'Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the trial judge's "feel" for the case is usually the critical ingredient of the decision at first instance which this Court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called "authority", in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for trial judges.

Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed.'

Author: MH

^ Return to the top

January 2006

F12.1 The Criminal Justice Act 2003

Hot on the heels of Renda [2005] EWCA Crim 2826, and Weir [2005] EWCA Crim 2866 (as to which see last month's update), Enright and others [2005] EWCA Crim 3244 provides the latest Court of Appeal guidance as to the proper interpretation of the 'bad character' provisions in the Criminal Justice Act 2003. Giving the judgment of the court, Scott Baker began by making these general observations (at [1]):

  1. "Often the first enquiry is whether it is necessary to go through the "bad character" gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the definition of bad character evidence which "has to do with the alleged facts of the offence" or evidence "of misconduct in connection with the investigation or prosecution of that offence". While difficult questions can arise as to whether evidence of background or motive falls to be admitted under those exclusions in section 98 or requires consideration under section 101(1)(c), it does not follow that merely because the evidence fails to come within the section 101 gateways it will be [inadmissible]. Often the first enquiry is whether it is necessary to go through the "bad character" gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the definition of bad character evidence which "has to do with the alleged facts of the offence" or evidence "of misconduct in connection with the investigation or prosecution of that offence". While difficult questions can arise as to whether evidence of background or motive falls to be admitted under those exclusions in section 98 or requires consideration under section 101(1)(c), it does not follow that merely because the evidence fails to come within the section 101 gateways it will be inadmissible. Where the exclusions in section 98 are applicable the evidence will be admissible without more ado.
  2. ii) Applications to admit bad character evidence may well arise at an early stage giving rise to real difficulty for the trial judge. Some applications e.g. under section 101(1)(b) cannot be refused; others, for instance brought under section 101(1)(e) may well be difficult to refuse (of which more in a moment).The parties would be well advised to reflect, at the time of the application, as to the use to which such evidence is likely to be put and be in a position to assist the judge in this regard. There can be difficulties for the judge in summing up when bad character evidence that has been admitted turns out, for whatever reason, to have only marginal relevance to the issues before the jury.
  3. iii) Under the new regime it is apparent that Parliament intended that evidence of bad character would be put before juries more frequently than had hitherto been the case. The judge's role is to determine admissibility under the statutory gateways and any questions of exclusion, for example under sections 101(3), 103(3) or section 78 of the Police and Criminal Evidence Act 1984. Once evidence of bad character is admitted (and not excluded) questions of weight are for the jury, subject to: (a) the judge's powers under [section] 107 (stopping the case where the evidence is contaminated) and (b) the judge's direction as to relevance and to other matters, as to which see R v Hanson [2005] 2 Cr App R 21, para 18 and R v Highton [2005] 1 WLR 3472 para 11.
  4. iv) Where evidence of bad character is admitted, the judge's direction is likely to be of the first importance. It will need to cover the matters canvassed in Hanson and Highton. It may also need to pull threads together on an issue where the ground may have shifted considerably since the evidence was admitted. In an appropriate case, the judge's direction may need to underline that, given the course taken by the trial, the evidence of bad character is by then of very little weight indeed.
  5. v) Simply because an application to admit evidence of bad character is made by a co-defendant, the judge is not bound to admit it. The gateway in section 101(1)(e) must be gone through. Sections 101(1)(d) and (e) give rise to different considerations. In determining an application under [section] 101(1)(e) analysis with a fine tooth comb is unlikely to be helpful; it is the context of the case as a whole that matters. Section 112 makes this clear by its definition of what amounts to an important matter in issue.
  6. vi) There are a number of other points about the position of co-defendants:
    1. the gateways under sections 101(1)(d), (f) and (g) are not open to them as only prosecution evidence, as defined in section 112, is admissible: see sections 103(6), 105(7) and 106(3).
    2. section 104(1) is not exhaustive of the scope of section 101(1)(e). It limits evidence relevant to a defendant's propensity to be untruthful.
    3. whether a defendant's stance amounts to no more than a denial of participation (see R v Varley 75 Cr App R 24), or gives rise to an important matter in issue between a defendant and a co-defendant will inevitably turn on the facts of the individual case.
  7. vii) Whilst we note the observation of the Vice-President in R v Bovell [2005] 2 Cr App R 27 para 21 that the court entertained considerable doubt whether the mere making of an allegation is capable of being evidence within [section] 100(1), we are persuaded that it is so capable, at any rate when considering the effect of section 109 in relation to an issue under section 101(1)(d). This is an area, however, in which it is important to guard against satellite litigation (see Bovell para 22). Further, it is appropriate to proceed with caution and with due regard to the judge's discretion to exclude evidence.
  8. viii) Finally we reiterate two points that have been made in the previous decisions of this court but which we think are worth repetition:
    1. 'admissibility' and 'use' give rise to different questions;
    2. the 'feel' of the trial judge is very important and this court will only interfere where the conviction is unsafe.

Author: MH

December 2005

F12.2 Bad Character

Evidence of bad character is now admissible (if at all) only where the Criminal Justice Act 2003, part 11 so provides (although where it is so admissible such character may be established through evidence of reputation under common-law rules preserved by s. 99(2)). In Weir [2005] EWCA Crim 2866, however, it was recognised (obiter) that:

'No doubt there are cases where previous conduct of a defendant is of probative value and therefore relevant to a matter in issue between him and the prosecution or him and a co-defendant, yet the "bad character" provisions of the [Criminal Justice Act 2003] relating to the defendant's "misconduct" do not apply. In such cases, section 99(1) of the Act whereby the common law rules governing the admissibility of evidence of "bad character" in criminal proceedings are abolished does not exclude the relevant material because it does not amount to "evidence of bad character".

This might in some cases include evidence of irrational or even dangerous behaviour to which no blame or culpability attaches, but although an absolute discharge following an earlier finding of unfitness to plead does not constitute a criminal conviction, it does not necessarily indicate that the person found unfit to plead was blameless as far as the alleged offence was concerned: and an act of violence that gave rise to the proceedings in question may still be considered reprehensible behaviour and thus evidence of bad character: Renda and other appeals [2005] EWCA Crim 2826.

Author: MH

13 September 2006

F12.2, F12.4, F12.23 Bad Character: Statutory Gateways

Malone [2006] EWCA Crim 1860 is interesting on the interaction of ss. 98(a) and 101(1)(d) of the Criminal Justice Act 2003.It is also interesting on the contemporary attitude of the Court of Appeal which is to strive for substantial justice rather than to give weight to technical points.

The appellant was convicted of the murder of his wife on the basis of a strong circumstantial case. The defendant's marriage had previously resulted in separation. A reconciliation had broken down. The victim disappeared and the appellant fled to Spain. The victim's body was not discovered until some time later.

A document was admitted in evidence. This purported to be a report from an enquiry agent alleging that the victim had visited places, pubs and clubs, and not places where she had told the defendant she was going. It ended with a testimonial to the defendant's good character. This report was shown to be a forgery. It was admitted in evidence pursuant to s. 98(a) as evidence of bad character to do with the alleged facts of the offence. The Court concluded that the evidence was capable of characterisation within the terms of s. 98(a). Evidence of the appellant's matrimonial difficulties, their intensity, and how he dealt with them could have been admissible as going directly to show, together with other circumstantial evidence, that he had committed the offence. As such it was capable of being evidence 'to do with the alleged facts of the case' in the same way as evidence of a joint venture or a conspiracy would have been admissible.

The evidence was not put at trial in this way. Nonetheless, the Court upheld the conviction as safe. The evidence could have been admitted under s. 101(1)(d). That was in fact the way the evidence was used by the prosecution at trial, as tending to show that the appellant was laying a false trail and this was relevant to an important matter in issue between the defence and prosecution. To the contention that the judge had not considered whether the evidence ought to be admitted in the light of s. 101(3), the Court replied that admissibility had been considered under the Police and Criminal Evidence Act, s. 78 in connection with the s. 98 application and that the provisions of the two sections are similar and require similar considerations.. It was not unfair for the evidence to be admitted.

Although no prior notice was given at trial of intention to admit evidence under s. 101(1)(d), under the CrimPR notice could have been given orally and the time abridged. Under the circumstances the Court concluded that non-compliance with CrimPR, part 35 was not an insuperable obstacle to the evidence being adduced under s. 101(1)(d). The Court concludes in effect that the failure to give notice did not render the conviction unsafe. This must follow from the fact that the evidence was in fact used as though it had been admitted under s. 101(1)(d) and the question of admissibility canvassed under s. 78 of PACE.

The judge's directions, while not as full as they might have been, were adequate. The jury was adequately directed that the evidence was admitted to show that the appellant had not been truthful after the victim's disappearance and that his conduct after that event was a charade. Accordingly, the conviction was upheld.

Author: LL

13 September 2006

F12.2, F12.4, F12.23 Bad Character: Statutory Gateways

Malone [2006] EWCA Crim 1860 is interesting on the interaction of ss. 98(a) and 101(1)(d) of the Criminal Justice Act 2003.It is also interesting on the contemporary attitude of the Court of Appeal which is to strive for substantial justice rather than to give weight to technical points.

The appellant was convicted of the murder of his wife on the basis of a strong circumstantial case. The defendant's marriage had previously resulted in separation. A reconciliation had broken down. The victim disappeared and the appellant fled to Spain. The victim's body was not discovered until some time later.

A document was admitted in evidence. This purported to be a report from an enquiry agent alleging that the victim had visited places, pubs and clubs, and not places where she had told the defendant she was going. It ended with a testimonial to the defendant's good character. This report was shown to be a forgery. It was admitted in evidence pursuant to s. 98(a) as evidence of bad character to do with the alleged facts of the offence. The Court concluded that the evidence was capable of characterisation within the terms of s. 98(a). Evidence of the appellant's matrimonial difficulties, their intensity, and how he dealt with them could have been admissible as going directly to show, together with other circumstantial evidence, that he had committed the offence. As such it was capable of being evidence 'to do with the alleged facts of the case' in the same way as evidence of a joint venture or a conspiracy would have been admissible.

The evidence was not put at trial in this way. Nonetheless, the Court upheld the conviction as safe. The evidence could have been admitted under s. 101(1)(d). That was in fact the way the evidence was used by the prosecution at trial, as tending to show that the appellant was laying a false trail and this was relevant to an important matter in issue between the defence and prosecution. To the contention that the judge had not considered whether the evidence ought to be admitted in the light of s. 101(3), the Court replied that admissibility had been considered under the Police and Criminal Evidence Act, s. 78 in connection with the s. 98 application and that the provisions of the two sections are similar and require similar considerations.. It was not unfair for the evidence to be admitted.

Although no prior notice was given at trial of intention to admit evidence under s. 101(1)(d), under the CrimPR notice could have been given orally and the time abridged. Under the circumstances the Court concluded that non-compliance with CrimPR, part 35 was not an insuperable obstacle to the evidence being adduced under s. 101(1)(d). The Court concludes in effect that the failure to give notice did not render the conviction unsafe. This must follow from the fact that the evidence was in fact used as though it had been admitted under s. 101(1)(d) and the question of admissibility canvassed under s. 78 of PACE.

The judge's directions, while not as full as they might have been, were adequate. The jury was adequately directed that the evidence was admitted to show that the appellant had not been truthful after the victim's disappearance and that his conduct after that event was a charade. Accordingly, the conviction was upheld.

Author: LL

September 2005

F12.4 Statutory gateways

In Highton and others [2005] EWCA Crim 1985, the Court of Appeal has added further guidance as to the interpretation of the 'bad character' provisions in the Criminal Justice Act 2003. It was necessary to determine whether evidence of a defendant's bad character which is admissible under s. 101(1)(g) of that Act (i.e. in a 'tit-for-tat' response to the defendant's attack on the character of another person) can then be relied upon as evidence of the defendant's criminal propensity or whether (as was the case with the old 'tit-for-tat' rule under the Criminal Evidence Act 1898, s. 1(f)(ii)) it must be considered relevant only to the defendant's credibility as a witness.

There was always an element of artificiality under the old tit-for-tat rule. If courts or juries could be trusted to accept in such cases that the defendant's bad character or criminal record was relevant only to his credibility as a witness, there could be no real objection to juries being told, routinely, about the criminal record of any defendant who chose to testify. It is precisely because courts and juries cannot be trusted to do any such thing that such evidence was otherwise kept from them under the old law. Nor was this always an indictment of the jury's powers of logical reasoning. On the contrary, the most intelligent of jurors could be expected to struggle when directed (for example) that the defendant's previous convictions for burglary should be considered relevant only to his credibility as a witness and not (perish the thought!) to any possible propensity to commit burglaries. The more intelligent the jurors the more absurd and irrational such a direction must have appeared.

In a number of places the Criminal Justice Act 2003 has expressly abrogated artificial rules under which certain items of evidence were formerly considered admissible only for limited purposes of this kind. The previous consistent or inconsistent statement of a witness, for example, need no longer be considered relevant only for the purpose of supporting or undermining the credibility of the witness concerned. Once admissible, such a statement may now be relied upon (if believed) as evidence of what really happened (s. 120(4) and (5)). But is that also true of character evidence admitted under s. 101(1)(g)?

In Highton the Court of Appeal ruled that it was. Giving the judgment of the court, Lord Woolf CJ noted that the obvious 'gateway' for evidence of criminal propensity is s. 101(1)(d), which must be read in conjunction with s. 103. An argument could thus be constructed to the effect that propensity evidence should be admitted (if at all) only via the s. 101(d) gateway; but the court rejected that argument. Lord Woolf said (at [9]-[10]):

"In our view, . . . the force of this argument is diminished for a number of reasons. First, s.103(1) prefaces s.103(1)(a) and (b) with the word "include". This indicates that the matters in issue may extend beyond the two areas mentioned in this sub-section. More importantly, while this argument can be advanced in relation to s.101(d), it can also be advanced in respect of the other parts of subsection (1), in particular in relation to s.101(1)(a) and (b). In addition, s.101(1) itself states that it is dealing with the question of admissibility and makes no reference to the effect that admissible evidence as to bad character is to have. We also consider that the width of the definition in s. 98 of what is evidence as to bad character suggests that, wherever such evidence is admitted, it can be admitted for any purpose for which it is relevant in the case in which it is being admitted.

We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted. It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted. That is not true, however, of all the gateways. In the case of gateway (g), for example, 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 particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged."

A further matter considered (if only obiter) in Highton was the relationship between the power of the court under s. 101(3) to exclude otherwise admissible bad character evidence in order to prevent injustice and the long established power of a court under the Police and Criminal Evidence Act 1984, s. 78 to exclude evidence on which the prosecution proposes to rely where it appears to the court that 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. The former provision protects only against unfairness arising out of the admission of bad character evidence under s.101(1)(d) or (g), but the scope of the Police and Criminal Evidence Act 1984, s. 78 is limited only by its inapplicability to defence evidence (even where such evidence is damaging to a co-defendant). Lord Woolf said (at [13]-[14]):

"The application of s.78 does not call directly for decision in this case. We, therefore, do not propose to express any concluded view as to the relevance of s.78. However, it is right that we should say that, without having heard full argument, our inclination is to say that s.78 provides an additional protection to a defendant. In light of this preliminary view as to the effect of s.78 of PACE, judges may consider that it is a sensible precaution, when making rulings as to the use of evidence of bad character, to apply the provisions of s.78 and exclude evidence where it would be appropriate to do so under section s.78, pending a definitive ruling to the contrary. Adopting this course will avoid any risk of injustice to the defendant.

In addition, as s.78 serves a very similar purpose to Article 6 of the European Convention on Human Rights, following the course we have recommended should avoid any risk of the court failing to comply with Article 6. To apply s.78 should also be consistent with the result to which the court would come if it complied with its obligation under s.3 of the Human Rights Act 1998 to construe sections 101 and 103 of the 2003 Act in accordance with the Convention."

Author: MH

April 2006

F12.4 New Statutory Gateways

Evidence of bad character that is admissible under one of the s 101 gateways may then, in appropriate cases, be used by a court of jury for other purposes. See Highton and others [2005] EWCA Crim 1985 (discussed in the October 2005 Blackstone's Criminal Practice Bulletin at p 11). In M [2006] All ER (D) 472 (Mar), the Court of Appeal emphasised that this depends on the relevance of the evidence in question. In that case, the defendant had criminal convictions for offences of violence, similar to that with which he was now charged, but he had pleaded guilty on those previous occasions. This time he had entered a plea of not guilty. In those circumstances, said the court, it was wrong for the judge to suggest that the previous convictions could possibly be taken to impact adversely on the defendant's credibility as a witness in his own defence.

Author: MH

March 2006

F12.6 Notice

It was argued in R (Robinson) v Sutton Coldfield Magistrates' Court [2006] EWHC 307 (Admin) that a strict approach should be adopted to failures in meeting deadlines relating to the giving of notice, and that "a culture of non-compliance should not be permitted to take root". A court therefore should only exercise its discretion to extend time under CrimPR, r. 35(8), in exceptional circumstances, where it has been provided with sufficiently good reasons as to why the prosecution could not comply with the mandatory time limit.

The Divisional Court agreed that a culture of non-compliance would be unacceptable, but refused to construe the r. 35(8) discretion as narrowly as the claimant suggested. Owen J said:

"The first point to be made is that time limits must be observed. The objective of the Criminal Procedure Rules 'to deal with all cases efficiently and expeditiously' depends upon adherence to the timetable set out in the rules. Secondly, Parliament has given the court a discretionary power to shorten a time limit or to extend it even after it has expired: rule 35(8). In the exercise of that discretion the court will take account of all the relevant considerations, including the furtherance of the over-riding objective. I am not persuaded that the discretion should be fettered in the manner for which the claimant contends, namely that the time should only be extended in exceptional circumstances.

15. In this case there were two principal material considerations: first the reason for the failure to comply with the rules. As to that a party seeking an extension must plainly explain the reasons for its failure. Secondly, there was the question of whether the claimant's position was prejudiced by the failure.

16. The reason advanced for the failure was that the police had made every effort to discover the facts of the previous convictions, but were not able to do so until 7th June. For my part, I have reservations as to the adequacy of that explanation. In my view a court would ordinarily wish to know when the relevant enquiries had been initiated, and in broad terms why they have not been completed within the time allowed. Any application for an extension will be closely scrutinised by the court. A party seeking an extension cannot expect the indulgence of the court unless it clearly sets out the reasons why it is seeking that indulgence. But importantly, I am entirely satisfied that there was no conceivable prejudice to the claimant, bearing in mind that he would have been well aware of the facts of his earlier convictions; secondly, that he was on notice on 14th April that there could be such an application; and thirdly, that there was no application for an adjournment on 16th June from which it is to be inferred that the claimant and his legal advisers did not consider their position to be prejudiced by the short notice.

17. In those circumstances I am not persuaded that the Justices erred in the exercise of their discretion to admit the evidence of bad character, notwithstanding the failure to comply with the rules. This was not a decision at which no reasonable bench of magistrates properly directed could have arrived."

Author: MH

June 2006

F12.6 Notice

As to the need for proper observance of time limits imposed by the Criminal Procedure Rules, and the difficulties that may be caused by late applications to admit evidence of a defendant's bad character, see M [2006] All ER (D) 164 (May).

Author: MH

September 2006

F12.6 Notice

A court or judge has a discretion to admit evidence of a defendant's bad character despite the lack of notice pursuant to CrimPR, r. 35.8 by permitting the notice to be given orally and shortening the time in which it can be given: see Lawson [2006] All ER (D) 116 (Aug).

Author: MH

March 2006

F12.11 Criminal Justice Act 2003: Admissibility under Section 101(1)(d)

Hanson [2005] EWCA Crim 824 was applied in Brima [2006] EWCA Crim 408, in which, on a charge of murder by stabbing, the prosecution were allowed to reinforce what might otherwise have been a less than totally convincing case with evidence of the defendant's previous convictions for two much less serious offences, each involving the use of a knife.

The first conviction in November 2002 was for assault occasioning actual bodily harm. After an altercation with the victim earlier the same day the defendant stabbed him in the leg with a knife. This case had certain other similarities with the present offence, in which the stabbing followed an earlier altercation between the deceased and a friend of the defendant.

The second conviction in April 2003 was for robbery. The facts were that the defendant had held a knife to the throat of the victim, and demanded his training shoes and top which the victim handed over. The prosecution contended that the appellant had a propensity to commit offences of violence using knives either by inflicting or threatening injury.

The case demonstrates once again that evidence which might not have satisfied the old common-law test for admissibility as similar fact evidence may well satisfy the new statutory criteria. Royce J said:

"40. In our judgment, the conclusion as to the capacity of these convictions to establish the requisite propensity that was reached by the judge was correct. He also concluded in answer to the question: 'does the propensity make it more likely that the defendant committed the offence charged?' that 'bearing in mind the proximity of these matters and nature it does'. We agree. Thirdly: is it unjust to rely on these matters and in any event will the proceedings be unfair if they are admitted? The judge, again, came to the conclusion that it would not be unfair to admit the convictions. We do not consider that the judge was plainly wrong. We consider that he was plainly right."

Author: MH

December 2005

F12.12 Proof of Propensity

In O'Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 WLR 1038 (which was not a criminal case), Lord Phillips appeared to suggest (obiter) that the Criminal Justice Act 2003 'codified' the old common-law rules governing evidence of bad character and that the test promulgated by the House of Lords in DPP v P to govern the admissibility of 'similar fact' evidence remained relevant to the admissibility of bad character evidence of criminal propensity. He then added,

'Instead of applying Lord Mackay's simple test [from DPP v P], the trial judge now has to apply his mind to the matters set out in sections 101 to 106 of the 2003 Act. These preserve, however, by rules of some complexity, the requirement that the similar fact evidence should have an enhanced probative value.'

This in part echoes suggestions advanced by some writers, but found no favour with the Court of Appeal in Weir [2005] EWCA Crim 2866, where the passages in question were politely described as 'capable of being misunderstood'. The 2003 Act, said Kennedy LJ, has completely reversed the old general rule governing evidence of bad character. Evidence of bad character is now admissible if it satisfies certain criteria, and s 101 does not require evidence of propensity to have any 'enhanced probative value'. Instead:

'If the evidence of a defendant's bad character is relevant to an important issue between the prosecution and the defence (s 101(1)(d)), then, unless there is an application to exclude the evidence, it is admissible. Leave is not required. So the pre-existing one stage test which balanced probative value against prejudicial effect is obsolete.'

Author: MH

May 2006

F12.12 Proof of Propensity

Evidence of a defendant's propensity to commit offences of the kind charged may be provided by criminal convictions relating to offences committed by the defendant either before or after the offence with which he is now charged. It was argued in Adenusi [2006] All ER (D) 231 (Apr) that evidence of subsequent criminal behaviour could not logically establish propensity at the time of the offence charged, but this argument was rightly rejected by the Court of Appeal.

Author: MH

22 August 2006

F12.12 Proof of Propensity

The issues arising when determining whether to admit a defendant's previous convictions under section 101 of the CJA 2003 are, in general, fact specific (Renda [2005] EWCA Crim 2826). In a proper case, evidence of a single conviction, even one some years old, may be properly adduced by the prosecution. In Heffernan [2006] EWCA Crim 2033, the defendant and another man, wearing balaclavas, burst into a home, threatened two of the occupants with a knife and stole. The third occupant managed to flee and phoned her father, who returned home with a colleague and intervened. The colleague was wounded. One of the burglars was seen to drop a balaclava in nearby bushes. That balaclava was found to contain the defendant's DNA. There may have been another's DNA on it, but that had not been established. Descriptions of the burglars were given which differed, one from another, principally in relation to their age. The defendant was not picked out at an identification parade. The prosecution sought leave to adduce a conviction for burglary against the defendant from some eight years earlier. This was submitted as evidence of propensity to burgle. Leave was not sought to adduce any other of the defendant's convictions. The trial judge directed himself in accordance with Hanson [2005] EWCA Crim 824 and allowed the prosecution to use the evidence of the conviction.

The Court of Appeal holds that the matter fell within the discretion of the trial judge. The Court observed, in particular, that the evidence against the defendant was strong. The DNA evidence and the descriptions of the balaclavas (dark woolly) and of the burglars were fully considered by the judge and fairly put to the jury. The trial judge fairly considered the age and distinguishing features of the previous conviction. This was not a case in which evidence of a previous conviction was being adduced to bolster a weak case. The defendant relied upon dicta in Hanson to the effect that it would sometimes be unjust to treat a single previous conviction as evidence of propensity.

It is plain from Hanson and from the instant case that the number and age of previous convictions are relevant matters but that a single conviction may in principle be adduced as evidence of propensity to commit the crime charged, particularly where there are substantial features of similarity between the previous and the instant case. The appeal was therefore dismissed.

Author: LL

April 2006

F12.13 Propensity under the Criminal Justice Act 2003, s 101(1)(d)

Hanson [2005] EWCA Crim 824 was applied in Tully [2006] All ER (D) 249 (Mar), in which the defendants, who were charged with robbery (allegedly committed with a knife), were proved to have had numerous convictions for offences of dishonesty, but only a few of these were for offences of robbery.

On appeal, it was held that whereas the robbery convictions were clearly relevant and admissible, convictions merely showing a propensity to acquire other people's property were not.

Author: MH

September 2006

F12.15 Identifying the Accused by Evidence of Bad Character under the Criminal Justice Act 2003, s. 101(1)(d)

Isechei [2006] EWCA Crim 1815 provides a somewhat unusual example of the use of bad character evidence to help identify the accused as the perpetrator of an offence. It was unusual because the evidence was not used to suggest that the accused had any propensity to commit offences of that type.

Two female students were assaulted and robbed by two men they had previously met in a club. One of the men had allegedly referred to some missing cocaine prior to robbing them. The appellant was visually identified by one of the victims and CCTV images from the crime scene showed a man resembling him. This identification evidence was supported, according to the prosecution, by the appellant's unusual first name (Marvin) which the girls had previously heard used in relation to one of the robbers, and by his previous conviction for importing cocaine.

The trial judge ruled that it was relevant that the defendant was connected to cocaine, when cocaine was the motive for these offences, but that the previous conviction did not establish any propensity or disposition to commit robbery. The Court of Appeal agreed. Auld LJ said (at [32]):

In our view, and paying all due allowance to the complexities introduced into this area of law by the 2003 Act, this was not a direction as to propensity -- quite the reverse. It was expressly a direction as to identification through the medium of a connecting factor so as to place Isichei in a discrete category of person interested in cocaine, so as to tie it to the girls' evidence as to the mention of cocaine by one of their assailants. However you look at it, the connecting factor is one in which the prosecution sought to find a way to support the evidence of identification: not a propensity to commit robbery or assault.

Author: MH

December 2005

F12.21 Risk of Collusion between Witnesses

It is important that the Criminal Justice Act 2003, s 107, should not be misused. Unless the case falls squarely within s. 107(5), the Court of Appeal is the appropriate court in which the correctness of the judge's original decision to admit bad character evidence should be questioned: R v Renda and other appeals [2005] EWCA Crim 2826 per Judge P at [27].

Even where the case does fall within s. 107(5), this does not mean that it would be unsafe to continue with the trial. It may in some cases be possible to neutralise any potential prejudice by demonstrating the fact (if such be the case) that the evidence in question is false. Greater difficulty may in fact be caused by evidence which although clearly contaminated is not demonstrably false, so that a jury may be tempted to rely upon it (ibid).

Author: MH

11 November 2005

F12.21; F12.31; F12.34; F14.6 to F14.9 Bad character evidence

Renda et al [2005] EWCA Crim 2826 contains the following propositions relating to admissibility of evidence of bad character and the application of the provisions of the Criminal Justice Act 2003.

  1. It is wrong to cite fact-specific authorities unless they illustrate a principle of law applicable to the case in hand.
  2. Most cases falling under these provisions are fact-specific: the Court of Appeal lacks the feel for the case of the trial judge and will be reluctant to upset the trial judge's discretion.
  3. In respect of s. 105 (evidence to correct a false impression), there is a significant difference between a defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to dissociate himself from false impressions conveyed by the assertions of others and a defendant who, in the process of cross-examination, is obliged to concede that he has been misleading the jury. Such a concession will not normally amount to a withdrawal or dissociation from the original assertion for the purposes of s. 105(3).
  4. A defendant who had on a previous occasion attacked another with a weapon, was found unfit to plead but found to have committed the act in question, and who was thereafter given an absolute discharge is not to be regarded as having been convicted but he may be regarded as having engaged in reprehensible behaviour.
  5. Section 107(5) (contaminated evidence) is not to be misused. Thus an erroneous concession by counsel that a jury's finding in the context of incapacity to plead amounts to a conviction, later corrected by counsel, does not amount to contamination within the meaning of s. 107(5).
  6. A defendant who is charged with a sexual offence and refers to alleged promiscuity by an alleged victim (in this instance a female victim) in grossly offensive terms lays himself open to cross-examination about his previous convictions since the term used by the defendant and the nature of his previous convictions were relevant to show his attitude towards his victim - see ss. 101(g) and 106(1)(c) (attack on another's character).
  7. Where it is alleged that a witness is of bad character, the imputation concerned must, if cross-examination is to be allowed under s. 100, be relevant to the issues in the case. An allegation that a publican took cocaine was held not to be relevant to an assertion by the defendant that the publican had falsely claimed to have been robbed by the defendant. On the other hand, a defence witness in the case could be cross-examined on his prior convictions where these had substantial probative value as to his credibility on the vital question whether the robbery had taken place.
  8. In determining whether to allow cross-examination, there is an interaction between the defence case statement and the willingness of the defendant to give evidence to make issues live, so laying a foundation for an application to cross-examine on a witness' past conduct. It is clear that the Court of Appeal expects the obligation to provide a case statement to be treated seriously, not perfunctorily.

Click here for the full judgment in Renda.

Author: LL

16 May 2006

F12.21 Risk of Collusion between Witnesses

In Card [200] EWCA Crim 1079, the accused was originally charged on two counts of sexual assault on a child under 13, but was convicted of only one offence in relation to the elder of two siblings. He appealed on the footing that evidence of previous convictions, admitted via propensity under the Criminal Justice Act 2003, s. 101 should have been excluded as contaminated under s. 107(1) and (5). The Court of Appeal held that the issue of contamination had not been sufficiently addressed by the trial judge and quashed the conviction.

The following points of importance emerge. First, contamination issues extend to evidence of bad character in the broad sense as well as to unequivocal evidence of bad character arising from unchallenged and usually unchallengeable evidence of previous convictions. Secondly, the direct concern is not the admissibility of such evidence but the consequences of its admission. Third, the decision whether the evidence of a witness is false, misleading, or different from what it would have been had it not been contaminated, requires the judge to make his own assessment of matters traditionally left for the jury. Fourth, the judge's decision may be made at the end of the prosecution case or at any later stage in the trial. Fifth, the evidence of bad character may obscure the dangers inherent in contamination.

The Court proposes that, where the defence makes a responsible submission that there is material in the prosecution case which suggests that the evidence may be contaminated, the judge should normally postpone a decision until the suggested contaminated evidence has been examined at trial. The judge would have in mind the precise details of the evidence actually given, with such weaknesses and problems as may have emerged.

He would then be acting not on his judgement about anticipated evidence but upon the evidence itself.

Click here for the full text of the judgment

Author: LL

June 2006

F12.21 Risk of Collusion between Witnesses

In Card [2006] EWCA Crim 1079, the Court of Appeal has for the first time given detailed consideration to the scope and effect of the Criminal Justice Act 2003, s 107. This provision was touched upon, briefly and obiter, in Renda [2005] EWCA Crim 2826 at [27], but has not previously been central to the outcome of any reported case. Card now provides detailed guidance as to the proper handling of s 107 issues, but this guidance appears to be undermined by confusion as to what evidence must be 'contaminated' before s 107 can apply.

The wording of the provision makes it clear that it is applicable only to cases in which the 'contaminated evidence' is evidence of bad character as defined in s 98 of the Act (ie evidence of misconduct other than evidence which has to do with the offence with which the defendant is charged or evidence of misconduct in connection with the investigation or prosecution of that offence). It is not applicable to cases in which uncontaminated evidence of bad character has been adduced in support of other prosecution evidence which is then found to be contaminated. If, for example, the complainant alleges that the defendant assaulted her, and evidence of his previous convictions for similar assaults is adduced under s 101(1)(d) to demonstrate his propensity to commit such assaults, s 107 is not engaged merely because evidence later emerges to show that the complainant changed her evidence after colluding with another prosecution witness. There is a danger in such cases that a court or jury will still convict the defendant because of his criminal record, but this is not a danger that s 107 purports to address.

On the other hand, s 107 is capable of applying in cases where D is charged with two or more allegedly similar or related offences, in which the evidence on one count has been presented as corroborative (or mutually supportive) of the other[s], but has then been found to be contaminated. This is because s 112(2) provides:

Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.

In other words, evidence relating to count 1 may be 'evidence of bad character' as far as count 2 is concerned (and vice-versa). If such evidence is contaminated, s 107 may then apply.

In Card, this essential distinction between contaminated evidence of bad character and contaminated evidence supported by uncontaminated evidence of bad character appears to have been overlooked. The purpose of s 107, said the court, was to safeguard the position of the defendant whose "bad character" had been put in evidence, by requiring the judge to stop the trial if "evidence in support of the prosecution" proves to have been contaminated. On that basis it was assumed that s 107 applied in a case where the only evidence identified by the court as 'evidence of bad character' (ie D's criminal record) was entirely free of contamination, and where the alleged contamination took the form of evidence that the two child complainants had been coached in their evidence (and told what to say) by their mother. Judge P said:

The duty under section 107 does not arise unless the judge is satisfied that there has been important contamination of the evidence. If he is so satisfied, what then follows is not a matter of discretion. The consequences are prescribed by statute. Whether or not there would on the conventional approach be a case to answer, the trial should be stopped. The jury must either acquit the defendant in accordance with a judicial direction, or if the judge considers that the case ought to proceed to a re-trial, the jury will be discharged from returning a verdict and a retrial ordered. . . .

In our judgment there was plain and unequivocal evidence that [the first complainant] M's evidence was different from what it would otherwise have been as a result of the conversations with her mother. The inference that [the second complainant] A's evidence was different from what it would otherwise have been if he had not been present during the same conversation as his sister, in our judgment, was virtually inescapable. The excluding provisions in section 107 were established. The jury should have been discharged.

The court did not refer to s 112(2), either expressly or by implication. Although the evidence of what was allegedly done to one complainant may have been bad character evidence when used to support the allegation made by the other complainant, the court does not recognise this, but instead purports to draw a distinction between witness testimony on the one hand and 'bad character evidence' on the other:

In future, we suggest that when, in answer to a submission by the Crown at the start of the trial that the defendant's previous bad character should be admitted before the jury, counsel for the defendant (as here) makes a responsible submission that there is material in the prosecution case itself to suggest that there was or may have been witness contamination, it would normally be sensible for the judge to postpone a decision until the suggested contaminated evidence has been examined at trial. If the decision to admit bad character evidence were postponed until the evidence of the complainants and any other witnesses were concluded, the judge, when deciding whether to admit the evidence of bad character, would have well in mind the precise details of the evidence actually given, with such weaknesses and problems as may have emerged. He would not then be acting on his judgment about anticipated evidence, but making a decision based on the evidence itself.

The judgment in Card is thus flawed and the guidance provided should be reconsidered when the opportunity arises.

Author: MH

31 August 2006

F12.25 Bad Character Evidence on Matters in Issue between Co-accused

Lawson [2006] All ER (D) 116 (Aug) concerns the relevance of bad character evidence going to truthfulness where one defendant seeks to exculpate himself and inculpate his co-defendant. In this case the defendant was charged with manslaughter. The allegation was that he and others with whom he was charged pushed the victim, who had a mental age of 8, into a lake intending to record the event on a mobile phone. The victim drowned.

The prosecution sought leave to adduce the defendant's previous conviction for wounding, but failed to give prior notice to the defence. The Court of Appeal held that the judge had discretion to allow the evidence of bad character despite the lack of notice under CrimPR, r. 35.8 by permitting notice to be given orally and by shortening the time in which it could be given. The truthfulness of a claim by one co-defendant that he had been an innocent bystander was a matter of substantial importance to the case as a whole (Criminal Justice Act 2003, s. 112). The defendant's evidence was likely to undermine that co-defendant's case. Furthermore, the previous conviction had substantial probative value pursuant to s. 101(e). The instant case involved strong evidence against the defendant and, given the limited nature of bad character evidence, the judge could not exclude it. He directed the jury that it went not to propensity but to credibility. The conviction was safe.

The test of admissibility of bad character evidence is a cautious one. A previous conviction for dishonesty is not necessarily evidence of untruthfulness. The issue is one of substantial probative value in the context of the case. Where the judge properly addresses these issues and finds that evidence has substantial probative value, the Court of Appeal is unlikely to interfere unless he was plainly wrong or Wednesbury unreasonable.

Author: LL

September 2006

F12.25 Criminal Justice Act 2003: Evidence of Bad Character Going to Matter in Issue between Co-accused

Lawson [2006] All ER (D) 116 (Aug) was a case in which the appellant and his co-accused had run cut-throat defences implicating each other in the manslaughter of a mentally handicapped victim. According to the summary report (no full transcript being yet available), the prosecution sought at the end of the appellant's evidence in chief to adduce evidence of his previous conviction for wounding; and this was ruled admissible under the Criminal Justice Act 2003, s. 101(1)(e). This must surely be a reporting error, because the prosecution are not permitted to invoke s. 101(1)(e). Only the co-accused could lawfully have done so. The judge directed the jury that evidence of this conviction was relevant only to the appellant's credibility as a witness, and was not directly relevant to his guilt.

On appeal, it was submitted that the conviction lacked any substantial probative value regarding an important matter in issue between the defendants; and had created irreparable prejudice to the appellant.

The Court of Appeal rejected this argument. The appellant's evidence tended to undermine the co-accused's defence and, given its relevance, the judge had had no discretion to exclude the evidence of his bad character.

Author: MH

December 2005

F12.31 Evidence to Correct a False Impression

There is a significant difference between the defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to disassociate himself with false impressions conveyed by the assertions of others, and the defendant who in the process of cross-examination is obliged to concede that he has been misleading the jury. A concession extracted in cross-examination that the defendant was not telling the truth in part of his examination-in-chief will not normally amount to a withdrawal or disassociation from the original assertion for the purposes of s. 105(3): Renda and others [2005] EWCA Crim 2826 per Judge P at [21].

Author: MH

December 2005

F12.33 Attack on another Person's Character

In Renda and others [2005] EWCA Crim 2826, one of the appellants (Ball) asserted on a charge of rape that the complainant had behaved or was disposed to behave in a reprehensible way ("She's a bag really, you know what I mean, a slag. . .") Accordingly the judge ruled that an attack had been made on her character for the purposes of the Criminal Justice Act 2003, s. 101(1)(g), as explained and expanded in s. 106, and in particular s. 106(1)(c). Evidence was given "of an imputation about the other person made by the defendant - (i) on being questioned under caution, before charge. . .". The judge considered whether to exclude the evidence under s. 101(1)(3) on the basis that its admission would have an adverse effect on the fairness of the proceedings, but concluded that cross-examination as to the appellant's bad character should be permitted, and the Court of Appeal held that there was no arguable basis for interfering with his decision.

Author: MH

July 2006

F12.33 Attack on another Person's Character

As previously noted, in Hanson [2005] EWCA Crim 824 the Court of Appeal drew a distinction between evidence of dishonesty and evidence suggesting a propensity to untruthfulness. Where propensity to untruthfulness is relied upon by reference to s. 101(1)(d) and s. 103(1)(b), said the Court, propensity to untruthfulness is not the same as propensity to dishonesty. Previous convictions, whether for offences of dishonesty or otherwise, are therefore likely to be capable of showing a propensity to be truthful only where truthfulness is in issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account (on arrest, in interview or in evidence) which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example by the making of false representations.

One may perhaps question whether it is possible to draw such a clear distinction. Is it really likely that a dishonest defendant (eg a habitual thief) would hesitate to lie in court if he thought he would get away with it? Whether that is true or not, the Court of Appeal in George [2006] EWCA Crim 1652 has adopted a different approach for the purposes of the Criminal Justice Act 2003, s. 101(1)(g).

The appellant in this case had attempted to blame his brother for the murder with which he was charged, and evidence of his (ie the appellant's) bad character had thus become admissible under s. 101(1)(g) (read in conjunction with s106). In summing up, the trial judge said:

. . . if, but only if, you think it right and fair you may take your knowledge of the character of the defendant into account when deciding whether or not his evidence to you was untruthful. It's trite to say, isn't it members of the jury, that a person with bad character may be less likely to tell the truth than a person of impeccably good character? But, of course, it doesn't mean or follow that he, the defendant, is incapable of telling the truth. . . . You will also want to bear in mind that the really serious offences of dishonesty, of burglary here, were committed by him a very long time ago when he was a youth, so you must decide to what extent, if at all, his character helps you when judging the truthfulness of his evidence.

It was argued that the judge had thereby erred by failing to distinguish between dishonesty and credibility. The court disagreed. Moses LJ said:

Hanson teaches that where evidence is adduced to establish a propensity, a distinction between offences of dishonesty and evidence of untruthfulness must be maintained. No such distinction arises where the evidence is adduced to show the character of the source of an accusation, pursuant to section 101(1)(g). The summing-up in our view was correct, but bearing in mind in any event the ample examples of this appellant's lack of credibility, in the repeated changes in his account, his credibility was shot in any event.

Author: MH

6 January 2006

F13.1 - 13.6, D13.4, D24.21 Good character direction: Incompetence of counsel: Conduct of prosecution counsel

In Mansoor Ramdhanie and others v The State [2005] UKPC 47 (on app. from Trinidad) the Privy Council reiterates that, where a defendant's good character is established by evidence (including an admission by the prosecutor) or by cross-examination, the trial judge must direct the jury as to both credibility and propensity. The issue of good character must be raised distinctly in such a way as to establish the defendant's good character.

In some instances failure by counsel to raise the issue will render the verdict unsafe. The focus of an appellate court ought to be on the impact which counsel's error had or might have had on the trial and verdict rather than ranking counsel's errors on some scale of ineptitude: Boodram v The State [2002] 1 Cr App R 203 was followed.

Their lordships reiterate the obligation on the prosecutor to present the case as a Minister of Justice. He should, in particular, not express his personal opinion as to the merits of the prosecution case.

Click here for the full text of the judgment.

Author: LL

September 2005

F13.3 The need for jury direction

The Privy Council stressed the need to give a good character direction which deals with the issues of both credibility and propensity in Singh v The State [2005] UKPC 35. Good character goes primarily to credibility, especially in a case in which the question of credibility goes to the very heart of the matter which the jury must decide. Here, the issue was one of credibility as between the defendant, a lawyer of hitherto unblemished good character, and a prosecution witness of whom the same could not be said. Lord Bingham of Cornhill commented "It may be that the jury would incline to regard a practising lawyer as a man of probity whose word was prima facie worthy of belief. But the belief of lawyers in their own probity is not universally shared, and there are those who believe them to be capable of almost any chicanery or sharp practice."

A failure to give a credibility direction will not necessarily render a conviction unsafe in every case. The matter needs to be reviewed in the light of all the facts of the case, but here, where the issue was one of credibility, it could not be said that the jury would inevitably have convicted had a proper direction been given: Aziz [1996] AC 41 followed.

Click here for the full text of Singh v The State.

Author: MH

December 2005

F13.8 Meaning of Good Character

Where a defendant has attempted to conceal his past from the jury, there may be no injustice in a judge declining, to give him even a qualified good character direction: Maillett [2005] EWCA Crim 3159.

Author: MH

April 2006

F14.4 Bad Character 'to do with' the Facts of the Offence etc

The distinction between evidence of bad character within the meaning of the Criminal Justice Act 2003 s 98 and evidence concerning the facts of the alleged offence was considered in Machado [2006] All ER (D) 28 (Mar). The Court of Appeal held that the trial judge in that case had been wrong to exclude evidence of a robbery complainant's alleged misuse of ecstasy at the time of the alleged offence, because this 'related to the very circumstances in which the offence had allegedly occurred'. It was 'contemporaneous with, and closely associated with, the alleged facts of the offence'. The weight of evidence however, meant that the appellants' convictions were not unsafe.

Author: MH

September 2006

F14.6 Threshold Conditions for Admissibility

There was a time when a prosecution witness whose truthfulness was challenged would expect to be cross-examined on any previous convictions he might have for offences of dishonesty. Following Hanson [2005] EWCA Crim 824, however, the courts now seem to hold that previous convictions, whether of a defendant or of a witness, and whether for offences of dishonesty or otherwise, are relevant to that defendant's or witness's credibility only where, in the earlier case, either there was a plea of not guilty and he gave an account (on arrest, in interview or in evidence) which the jury must have disbelieved, or where the way in which the offence was committed shows a 'propensity for untruthfulness', e.g., by the making of false representations.

S [2006] All ER (D) 120 (Aug) follows this new orthodoxy. The Court of Appeal approved of the fact that the jury which convicted the appellant of serious sexual offences was told nothing of the complainant's convictions for various offences of dishonesty. Now these convictions were old and relatively minor, and may have lacked any great relevance in this particular case, but is it really right to proceed on the basis that a many-times-convicted thief, burglar or handler is less likely to lie on oath than a convicted fraudster, and no more likely to do so than a citizen of unblemished character? Really?

Author: MH

December 2005

F14.7 Evidence of Substantial Probative Value

The first cases in the Court of Appeal to involve issues under the Criminal Justice Act 2003, s. 100 suggest that under the new regime witnesses other than defendants are indeed less likely than before to have their bad characters revealed, whereas the bad character of a defendant is more readily admissible than ever before. See for example Weir [2005] EWCA Crim 2866.

It was nevertheless held in Weir that matters relating only to the credibility of a witness may be admissible under s 100, if they have substantial probative value in respect of such credibility and if the credibility of the impugned witness is of substantial importance in the context of the case as a whole. To exclude evidence of credibility, said the court, would leave a significant lacuna in the legislation with the potential for unfairness, and it is clear from the explanatory notes to the Act (at para. 362) that Parliament did not intend issue of witness credibility to be excluded from the operation of that section.

See also Renda and others [2005] EWCA Crim 2826.

Author: MH

January 2006

F14.7 Evidence of Substantial Probative Value

Evidence as to spent convictions of a witness other than a defendant may still have substantial probative value so as to be admissible under the Criminal Justice Act 2003, s. 100: see Gadsby [2005] EWCA Crim 3206.

Author: MH

May 2006

F14.7 Evidence of Substantial Probative Value

The Criminal Justice Act 2003, s 100, was examined by the Court of Appeal in S [2006] All ER (D) 273 (Apr). The complainant in a case of alleged sexual assault was a prostitute and heroin addict, who had convictions for burglary, theft and related offences, to which she had pleaded guilty. She alleged that the appellant had violently assaulted her. His defence was that he had paid her for 'hand relief' and that she had then demanded further payment, threatening him with a rape allegation if he did not pay up.

The trial judge rejected the appellant's application to cross-examine the complainant as to her convictions on the basis of their relevance to her credibility, and the Court of Appeal appear to have agreed that these convictions were not sufficiently relevant on that particular basis. No transcript is yet available, but this ruling appears, with respect, to be surprising. A complainant with such a criminal record might reasonably be regarded as an untrustworthy witness, even allowing for the fact that she had always pleaded guilty, especially since it was largely a case of her word against the appellant's and credibility was crucial.

This ruling was of no consequence as far as the appellant's case was concerned, because the court took the view that the complainant's convictions were relevant to the issue of her propensity to behave dishonestly (e.g. by blackmailing the appellant as he asserted she had done). A retrial was ordered.

Author: MH

September 2005

F15.1 Criminal Justice Act 2003: Application

The provisions in the Criminal Justice Act 2003, part 11, chapter 2 (hearsay evidence) apply to all cases where the trial takes place after the commencement date (4 April 2005), even if there has been a preparatory hearing prior to that date (H [2005] EWCA Crim 2083).

Author: MH

September 2006

F15.11 Implied Statements as Hearsay

The definition of hearsay provided by the Criminal Justice Act 2003, s. 115, has quickly caused difficulties for the courts, particularly in the context of 'implied assertions'. See for example Singh [2006] EWCA Crim 660 and David Ormerod's commentary on that case at [2006] Crim LR 647.

In Isechei [2006] EWCA Crim 1815 (see F12.15 above) one of the pieces of evidence used to identify the appellant as one of the robbers was the fact that the victims recalled another person referring to that person as 'Marvin', which was the appellant's first name and not a common one. The defence argued that the prosecution's reliance on this evidence infringed the rule against hearsay, but the trial judge accepted the Crown's argument that the evidence did not fall within the definition of hearsay in s. 115(2) and (3) because it was not a representation of fact or opinion and it was not made in order to cause any other person to believe the matter, or to act upon the basis that the matter was as stated.

The Court of Appeal declined to decide the issue one way or the other, and relied instead on the fact that s. 114(1)(d) would enable such evidence to be admitted at the judge's discretion even if it were found to be hearsay. Auld LJ said (at [41]):

In our view, the judge may have been wrong in concluding that it was not a statement within section 115(3) and so governed by the Act. That would require a semantically correct and somewhat highly artificial application of the provision in this context in an analysis to what was essentially an inconsequential part of the story so far as the speaker on the telephone at the time was concerned. It is common sense that it is a possible inference that he spoke to Marvin, or someone whom he knew who was at the club, leading, as a result of the conversation, for them all to go there. But even if the man on the telephone had not, in the words of section 115(3)(a), had the purpose of causing the others in the cab to know that he was talking to Marvin, the evidence, if that were the case, would be, if anything, more probative than otherwise. Why should he care, if the story was true, what the others believed as to the truth of the person to whom he was talking or as to what was being said. Their only interest at the time was whether as a result of the telephone call they would be able to find another club to go to which was open. Whatever the position, it seems to us that the evidence about that was clearly admissible in the interests of justice under section 114(1)(d) as part of the story of a common sense series of events, the one leading from the other.

Author: MH

September 2005

F16.1 Criminal Justice Act 2003: Application

The provisions in the Criminal Justice Act 2003, part 11, chapter 2 (hearsay evidence) apply to all cases where the trial takes place after the commencement date (4 April 2005), even if there has been a preparatory hearing prior to that date (H [2005] EWCA Crim 2083).

Author: MH

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16 December 2005

F16.4, F15.1 Hearsay rules and recent complaint

Xhabri [2005] EWCA Crim 3135 considers the exceptions to the hearsay rule contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. The accused, an Albanian criminal, was convicted of false imprisonment, rape, threats to kill and control of prostitution for gain. The victim was a young Latvian girl who fell into his clutches. The issue concerned the admissibility of statements made by her to her father's neighbour, her mother and father by telephone, and a security guard, and statements made by the security guard and a woman to a police officer of what the victim told them. The victim was able to escape and to flee to York but was found by the defendant's associates and brought back to London. The prosecution adduced evidence that two Albanian men had, during this period, gone to Laura's father's flat and inquired after her whereabouts, saying that she had gone missing.

The Court concluded that the evidence of first-hand hearsay was admissible both under s. 120(7) and in the interests of justice generally. The victim was a witness. It was highly probative. The offences were ones to which the proceedings related, the statement was of a complaint about conduct which, if proved, would constitute the offence, and it was made as soon as could reasonably be expected. In this case the complaints were made while the victim was still being held captive. The complaints were made freely and before they were adduced the victim had given evidence about the matter. In addition, under s. 114, it was clearly in the interests of justice that the hearsay statements be admitted because the defence case could at that stage have been that the victim never made the alleged statements, rather than that they were false (which was the defence in fact advanced), and to any such assertion the evidence would have been material for the jury to consider. Evidence of what the two Albanians said of the victim's disappearance was material to support the victim's story of her escape to York.

The second-hand hearsay-evidence (or double hearsay), of what was said to the police officer by those to whom the victim related her plight, was admissible in the interests of justice under s. 114.

Section 114 is not incompatible with the ECHR, Article 6 or the Human Rights Act 1998. The issue of incompatibility arises only if the legislation cannot be construed and applied in accordance with the 1998 Act and the Convention. The court has a discretion to refuse to receive hearsay where its reception could contravene the statute. It is therefore capable of compatible operation. Furthermore, Article does not convey an absolute right to examine every witness whose evidence is adverse to a defendant; the touchstone is whether the fairness of the trial requires this. Here, the victim was available for cross-examination and it was from her that all the statements came. The appeal was dismissed.

Clickhere for the full text of the judgment

Author: LL

11 November 2005M

F16.5 Discretionary exclusion of statements

In Al Khawaja, [2005] EWCA Crim 2697, in the context of charges of indecent assault by a physician engaged in rehabilitative work, the Court holds that the admission in evidence of a witness statement by a witness who has subsequently died is not necessarily a breach of the ECHR, Article 6. The right to cross-examine a witness, specified in Article 6(3)(d) is an aspect of a fair trial, but if that opportunity is not provided the question is whether the proceedings as a whole, including the way in which evidence was taken, were unfair. The case law of the European Court of Justice does not require the conclusion that the death of the sole witness to an offence necessarily renders the trial unfair.

These cases, as the court noted in Sellick [2005] EWCA Crim 651, [2005] 2 Cr App R 15, are apt to be fact specific. Here, the statement of the dead witness and the evidence of another victim were mutually supportive. It was conceded at trial that there was no issue of collusion as between the women. The prosecution could also rely on the statements of two other women. The appellant could attack the statement of the deceased witness on the footing that there were inconsistencies between it and the statements of other witnesses and by reference to the possibility that her perceptions had been altered under hypnosis. The jury had been properly directed.

Although this case was decided under the Criminal Justice Act 1988, ss. 23, 25 and 26, the principles in it apply to the Criminal Justice Act 2003, s. 116.

Click here for the full judgment in Al Khawaja.

Click here for the judgment in Sellick.

Author: LL

27 February 2006

F16_7 Unavailable witnesses

C & K [2006] EWCA Crim 197 is an interesting example of the Court's approach to the reception of evidence from a witness abroad whose attendance at trial it is allegedly not reasonably practicable to obtain. This was a case of conspiracy to defraud. P, an important witness who was resident in South Africa, agreed to come to London to give evidence. Just before the date fixed for trial, P intimated via his solicitor that he would not attend at trial. The solicitor refused to discuss the matter with the prosecution, alleging client confidentiality. The police suspected coercion. The judge vacated the fixture, ruling that P's statement could be adduced in evidence under the Criminal Justice Act 2003, s. 116(2)(c ) and that the evidence should not be excluded under the Police and Criminal Evidence Act 1984, s. 78. His Honour then set a new trial date.

Allowing an appeal relating to the ruling at the preparatory hearing (under the Criminal Procedure and Investigations Act 1996, s. 35), the Court of Appeal held that the expression "reasonably practicable" in the Criminal Justice Act 2003, s. 116(2)(c ) must be judged on the basis of the steps taken , or not taken, by the party seeking to secure the attendance of the witness. That, however, is only the first step. The next step is to address issues of fairness under s. 126 of that Act and s. 78 of the Police and Criminal Evidence Act 1984. This depends in part upon what efforts should reasonably be made to secure the attendance of the witness or, at least, to arrange a procedure whereby the contents of the statement can be clarified and challenged. Here, there was doubt as to the meaning and significance of certain statements.

The Court concluded that further steps could be taken to deal with the issue of attendance or obtaining oral evidence by other means. Rather than order that particular steps be taken, the Court remitted the issue to the consideration of the parties and for case management by the trial judge. In this case, it should be noted, several alternatives were available and the Court's approach should, seemingly, be seen in that light. The Court refers with approval to Radak, [1999] 1 Cr App R 187.

Click here for the full text of the judgment.

Author: LL

September 2005

F16.11 Criminal Justice Act 2003: Business and Other Documents

In Humphris [2005] EWCA Crim 2030, the prosecution had sought to rely on the Criminal Justice Act 2003, s. 117 so as to provide evidence of the previous behaviour of the accused in relation to his previous convictions. It was alleged that he had been guilty of a series of assaults on women on the same night and that "the methods used" had been similar in the case of his previous convictions. It was held that, whilst the evidence of the fact of the accused's previous convictions had been admissible pursuant to s 117 Act as an alternative to the provisions of the PACE 1984, s. 73 or s. 74, the evidence of 'methods used' had been inadmissible. It has been suggested that this endorsement of the use of s. 117 will lead to the large-scale abandonment of the use of the PACE sections in proving convictions as s. 117 has a number of practial advantages.

Section 117 of the 2003 Act provides for the admission of business or other documents but the 'relevant person' for the purposes of the section would have been the complainant in relation to each previous conviction not a police officer.

The Court of Appeal gave guidance for future practice and emphasised the importance of the prosecution determining whether they need more than the fact of a previous conviction to achieve the purpose for which it is admitted. Where the prosecution do want more than evidence of the fact of a previous conviction, they must have the evidence to support the allegations (normally a statement of the complainant relating to the previous conviction in a sexual case who is available to give first-hand evidence of what had happened). Care had to be exercised to establish that it really was necessary to go to such lengths, especially having regard to the effect of such involvement of the past victims.

Click here for the full text of the judgment in Humphris

Author: MH

December 2005

F16.15 Criminal Justice Act 2003: Discretionary Exclusion

In Al-Khawaja [2005] EWCA Crim 2697, the Court of Appeal returned to the issued raised by the ECHR, Article 6(1) and (3)(d) in cases where a key prosecution witness is dead or otherwise unavailable and the prosecution propose to use a statement made by that witness as hearsay. The case arose under the Criminal Justice Act 1988, s. 23, but the human rights issues are essentially the same as those which may arise under the Criminal Justice Act 2003.

Having considered Sellick [2005] EWCA Crim 651, and Doorson v Netherlands (1996) 22 EHRR 330, the court concluded that nothing in Article 6 required the exclusion of the deceased complainant's evidence in the circumstances of that case, but the court certified the following question of law of general public importance for possible consideration by the House of Lords:

'Was it a breach of the defendant's right to a fair trial provided by art 6(1) and (3)(d) of the European Convention on Human Rights that the statement of the essential witness on one count was admitted in evidence, she having died?'

Author: MH

March 2006

F16.15 Discretionary Exclusion of Statements Admissible under ss 116 and 117

  1. Radak [1999] 1 Cr App R 187 was considered by the Court of Appeal in C and another [2006] EWCA Crim 197. See F16.50 below.
  2. In R (Robinson) v Sutton Coldfield Magistrates' Court [2006] EWHC 307 (Admin), the Divisional Court examined the circumstances in which a court may properly admit hearsay evidence under the Criminal Justice Act 2003, s. 116, on the basis that the witness is afraid to testify in court. It was argued on behalf of the defendant that according to the witness's statement her fear was of being followed from the court by the defendant, or his friends, so enabling him to discover the women's refuge that was her current address. It was argued that this fear could have been overcome by arrangements being made by the police to transport her to and from the court in such a manner as to ensure that her address was not revealed. Having noted the observations of Leveson J in Arnold [2004] EWCA Crim 1293 and those of Waller LJ in Sellick [2005] EWCA Crim 651, Owen J held that the justices in this case were fully entitled to admit hearsay evidence under s. 116. He was not persuaded by arguments that the justices had given insufficient consideration to possible special measures (which did not fall within the Youth Justice and Criminal Evidence Act 1999) that counsel now suggested could have been adopted so as to allay the witness's fears:

    "Whilst in retrospect it might have been sensible to have made enquiries as to what, if any, other arrangements could have been made to convey the complainant both to and from court so as to insure her against the risk of the defendant tracing her, I do not consider that the Justices can be criticised for failing to embark upon such an investigation when that question was not raised before them."

Author: MH

January 2006

F16.17 Hearsay Admissible in the Interests of Justice

In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. X appealed against his convictions for false imprisonment, rape, threats to kill and control of prostitution for gain. The complainant was a young Latvian girl who fell into his clutches. The issue concerned the admissibility (1) of statements made by this girl to her father's neighbour, to her mother and father by telephone, and to a security guard, and (2) of statements made by the security guard and a woman to a police officer of what the complainant had told them.

The complainant was able to escape and flee to York but was found by X's associates and brought back to London. The prosecution adduced evidence that two Albanian men had, during this period, gone to her father's flat and inquired after her whereabouts, saying that she had gone missing.

The Court concluded that the evidence of first-hand hearsay was admissible both under s. 120(7) and in the interests of justice generally. The complainant was a witness. It was highly probative. The offences were ones to which the proceedings related, the statement was of a complaint about conduct which, if proved, would constitute the offence, and it was made as soon as could reasonably be expected. In this case the complaints were made while she was still being held captive. The complaints were made freely and before they were adduced she had given evidence about the matter. In addition, under s 114(1)(d), it was clearly in the interests of justice that the hearsay statements be admitted because the defence case could at that stage have been that the complainant never made the alleged statements, rather than that they were false (which was the defence in fact advanced), and to any such assertion the evidence would have been material for the jury to consider.

Evidence of what the two Albanians said of the complainant's disappearance was material to support her story of her escape to York. Insofar as this evidence was to the effect that the two men were trying to ascertain her whereabouts, it was evidence of fact rather than hearsay. Insofar as it was evidence that the two men had stated that she had disappeared it was hearsay. This was a significant part of the story in that it fitted in with the complainant's evidence of her escape to York.

The multiple hearsay evidence (or double hearsay), of what was said to the police officer by those to whom the complainant had previously related her plight, was admissible - if not under s. 121(1)(a) then in the interests of justice under s. 121(1)(c).

The court also ruled that s 114 is not incompatible with the ECHR, Article 6 or the Human Rights Act 1998. The issue of incompatibility arises only if the legislation cannot be construed and applied in accordance with the 1998 Act and the Convention. The court has a discretion to refuse to receive hearsay where its reception could contravene the statute. It is therefore capable of compatible operation. Furthermore, Article 6 does not convey an absolute right to examine every witness whose evidence is adverse to a defendant; the touchstone is whether the fairness of the trial requires this. Here, the witness was available for cross-examination and it was from her that all the statements came. X's appeal was accordingly dismissed.

Author: MH

February 2006

F16.17 Hearsay Admissible in the Interests of Justice

The obligation imposed by the Criminal Justice Act 2003, s. 114(2) was examined by the Court of Appeal in Taylor (2006) The Times, 7 February 2006. The requirement that the court or judge 'must have regard to the following factors', should not be taken to mean that a trial judge must embark upon a detailed investigation (perhaps involving the hearing of evidence) in respect of each of the nine factors listed in s. 114(2). There is nothing in the wording of the statute that requires a court or judge to reach a specific conclusion in relation to each listed factor. If it did have that meaning, trials would become greatly elongated. Section 114(2) does however require an exercise of judgment in the light of any particular factor identified in accordance with that provision.

Author: MH

March 2006

F16.35 Statements in furtherance of Common Purpose

The scope of the 'common purpose' doctrine was again examined in Platten [2006] EWCA Crim 140, in which the Court of Appeal confirmed that a statement made by one of the parties to a conspiracy or common enterprise may be admissible against others even if it does not, strictly speaking, further or advance the conspiracy. Waller LJ said (at [35]):

"The exclusion of what is described as 'mere narrative' applies however only to narrative after the conclusion of the conspiracy. Statements made during the conspiracy and as part of the conspiracy, because they are part of the natural process of making the arrangements to carry out the conspiracy, will be admissible."

Having cited a passage from the judgment of Kennedy LJ in Barham [1997] 2 Cr App R 119, Waller LJ continued:

As that passage makes clear, the evidence is admissible when it can be said of it 'this is the enterprise in operation'. Furthermore . . . the evidence is admissible not just as to the nature and extent of the conspiracy, but also as to the participation in it of persons absent when the declarations are made."

Author: MH

January 2006

F16.48 Criminal Justice Act 2003: Additional Requirements for the Use of Multiple Hearsay

In Xhabri [2005] EWCA Crim 3135, the Court of Appeal examined the exceptions to the hearsay rule now contained in the Criminal Justice Act 2003, ss. 114, 120, and 121 both as to the conditions of admissibility and as to compatibility with the ECHR, Article 6. See F16.17 above.

Author: MH

June 2006

F16.48 Criminal Justice Act 2003: Multiple Hearsay

The Criminal Justice Act 2003, s 121(1)(c) was relied upon in Maher v DPP [2006] EWHC 1271 (Admin), in which, following a collision, evidence of the defendant's car registration number had been provided to the victim by a member of the public, and then passed on to the police by the victim's girlfriend and recorded by the police officer in question in the relevant incident log. The log was thus based on multiple hearsay. Although at trial the justices had purported to rely upon s 117 of the Act, the element of multiple hearsay in fact precluded reliance on that section (see s 117(2)(c)). At this point s 121(1)(c) became crucial, and the Divisional Court concluded that it was clearly in the interests of justice for the evidence to be admitted.

Author: MH

August 2006

F16.49 Criminal Justice Act 2003: Evidence Affecting the Credibility of Admissible Hearsay

The Criminal Justice Act 2003, s. 124, and its application in cases where witnesses do not testify because of fear or intimidation, was examined by the Court of Appeal in Taylor [2006] All ER (D) 32 (Jul). The court noted that s. 124 enables a judge to strike a fair balance between the interests of the parties in cases where a key witness is not available to testify and submit to cross-examination as to his credibility.

Author: MH

March 2006

F16.50 Unconvincing and Superfluous Hearsay

The Court of Appeal in C and another [2006] EWCA Crim 197 appears to have adopted a more expansive interpretation of the Criminal Justice Act 2003, s 126, than that put forward in Blackstone's Criminal Practice (see also F16.15). That section, said Pill LJ, gives the court a "general discretion" to exclude evidence [meaning hearsay evidence?] in criminal proceedings. If this is indeed what s. 126 was intended to do, one may perhaps wonder why it is worded so differently from the Criminal Justice Act 1988, ss. 25 and 26.

Author: MH

December 2005

F17.34 Confession Implicating a Co-accused

Coll [2005] All ER (D) 82 (Nov), 7 November 2005, CA provides an illustration of the possible use against an accused of a confession made in his presence by a co-accused.

In the course of a recorded telephone call to the emergency services following a fatal stabbing, the appellant's co-accused said something which suggested that she and the appellant were jointly responsible for the offence. The appellant appears to have said nothing. On the facts of the case, it seems far from clear that it was safe to draw any inferences from the appellant's failure to deny what the co-accused said, because it was not even clear that the appellant had either heard or understood what was said. This however was held to be a matter for the jury to decide, and the trial judge had directed them correctly.

Author: MH

December 2005

F17.42 Editing at Trial to Protect a Co-accused

Lobban v The Queen [1995] 1 WLR 877 was considered and applied by the Court of Appeal in Mitchell [2005] All ER (D) 74 (Nov), 4 November 2005, CA.

Author: MH

April 2006

F17.49 Statements in Presence of Accused

Lord Atkinson's famous dictum in Christie [1914] AC 545 was considered (and accepted as settled law) in Bowen [2006] EWCA Crim 333.

Author: MH

22 February 2006

Recognition evidence - i.d. parade

In Ebanks v The Queen [2006] UKPC 6 the Privy Council upholds the rule, well supported in English law, that in a case involving disputed recognition, an identification parade should be held. Such a parade can be used to test the honesty of the witness' assertion that he knew the accused. Furthermore, the witness might have changed his mind or have failed to identify the defendant (Harris [2003] EWCA Crim 174).

Where errors or shortcomings in the identification parade are alleged, the question for the court will be whether they were such as to cause the fairness of the identification procedure to be placed in doubt.

Click here for full text of the judgment

Author: LL

November 2005

F18.6 Where Identification Procedures may be Unnecessary

Forbes [2000] UKHL 66 was followed by the Court of Appeal in Muhidinz [2005] EWCA Crim 2758.

Click here for the full text of the judgment in Muhidinz.

Author: MH

May 2006

F18.16 Dock Identification

The Privy Council in Edwards v The Queen [2006] UKPC 29 distinguished between 'first time' dock identification, which will ordinarily be unacceptable, and cases in which a witness who has previously identified the defendant as the offender or suspected offender repeats this identification by pointing to the defendant in court. Whilst clearly less objectionable, the view of the Judicial Committee was that this was nevertheless, "an undesirable practice" and that "other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged".

Author: MH

May 2006

F18.19 The Turnbull Guidelines

The Turnbull guidelines were considered and applied by the Privy Council in Edwards v The Queen [2006] UKPC 29.

Author: MH

January 2006

F18.27 Photographing Suspects

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia s. 116 of the Act, which extends the power to photograph suspects. The effect is fully described in the main work.

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code D includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 mentioned above.

Author: MH

November 2005

F18.28 Use of Visual Images and Evidence at Trial

A-G's Reference (No. 2 of 2002) [2002] All ER (D) 73 (Oct) [2003] 1 Cr App R 321 was applied in West [2005] All ER (D) 364 (Oct) (31 October 2005, CA).

Author: MH

December 2005

F18. 28 Use of Visual Images as Evidence at Trial

As to the use of 'facial mapping' techniques in support of poor quality CCTV images, see also Ciantar [2005] All ER (D) 356 (Nov), 25 November 2005, CA.

Author: MH

12 July 2006

F18.31; A5.6 DNA Evidence: Liability of Accessory

Bates [2006] EWCA Crim 1395 considers the admissibility of partial profile DNA evidence, considering Doheny [1997] 1 Cr App R 369. The defendant was charged with one Garside of the murder of Garside"s estranged wife. The prosecution case was that Bates killed Marilyn Garside and that he was incited by Garside to do so. DNA evidence at the scene produced a partial profile that was interpreted as providing a 1 in 610,000 probability that Bates was the killer. A statistical value of 1 was given to the voids in the partial profile The defence objected that the evidence was inadmissible arguing that it was impossible to ascribe a statistical value to the potentially exculpatory effect of the voids in a partial profile. The defence expert stated that the match profile was probably lower than 1 in 610,000. The trial judge admitted the evidence concluding that the issue of probability and thus probative value was for the jury.

The Court of Appeal agreed. Of Doheny it stated (at [29]):

we can find nothing in that case to support the proposition that only match probability calculations which take into account the statistical value of every conceivable possibility are admissible in evidence or that evidence based on partial profiles must be rejected in every case. That does not reflect the approach taken by Prof. Balding in his evidence to the judge on the voir dire, nor do we think it is consistent with good sense. The court in Doheny . . . was primarily concerned to provide guidance of a general nature in relation to the presentation of DNA evidence and to expose and eradicate the so-called "prosecutor's fallacy" which elevated the significance of the evidence beyond its proper level. It was not concerned with the distinction between full profile evidence and partial profile evidence, although there are passing indications in the judgment that the court may have had partial profile as well as full profile evidence in mind - see, for example, the reference to "the frequency with which the matching DNA characteristics are likely to be found in the population at large" at page 374E. Moreover, it is necessary to bear in mind that in one sense all profiles currently obtainable are partial inasmuch as present techniques only allow testing at 10 loci. We were told that at the time when the tests considered in Doheny . . . were performed the analysis was carried out by reference to 6 loci; now it is carried out by reference to 10 and we were told in the course of argument that advances in technology may make it possible to test by reference to many more. It remains the case, however, that the presence of one allele at one locus that does not match the profile of the comparator is sufficient to exclude that person as the contributor.

There is, the Court concluded, no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it.

The trial judge, having regard to the way in which the prosecution presented its case, directed the jury that they could convict Garside only if they were sure that Bates was the killer. The appellant argued that this was a misdirection because a secondary party may be convicted despite the fact that the principal is acquitted. The Court concluded that, while the appellant"s contention might be correct as a matter of law, no other direction was possible in the light of the way the prosecution put its case against Garside.

Author: LL

January 2006

F18.32 Fingerprints and Footwear Impressions

The Serious Organised Crime and Police Act 2005 (Commencement No. 4 and Transitory Provision) Order 2005 (SI 2005 No. 3495) brings into force, on 1 January 2006, inter alia s. 118 of the Act, which inserts s. 61A into the Police and Criminal Evidence Act 1984, which concerns the taking of impressions of footwear. The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 (SI 2005 No. 3503) appoints 1 January 2006 as the date on which the revised PACE Codes A to F and new Code G (exercise by police officers of statutory powers of arrest) take effect. The revised Code D includes changes to take account of new powers provided by the Serious Organised Crime and Police Act 2005 mentioned above and the extended power to take fingerprints elsewhere than at a police station and without consent.

Author: MH

29 August 2006

F19.4 Inferences from Silence - Boyle

Boyle and Ford [2006] EWCA Crim 2101 holds, after a full analysis of the relevant authorities, that a misdirection concerning silence and the effect of the Criminal Justice and Public Order Act 1994, s. 34 will not necessarily result in a conviction being quashed. There is no absolute rule to the contrary effect. The matter must be judged in the light of the whole of the evidence and the extent of the misdirection. The Court of Appeal thus states (at [14]): 'We believe that an absolutist approach, particularly to a reference, is not called for. Each case depends on its own circumstances. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess whether, having regard to the jury's verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.'

In this case in which the defendants were convicted of murder, no point on the judge's directions was taken at trial or on a first appeal or on a first application to the Criminal Cases Review Commission. Not until a second application to the CCRC was such a point taken. The direction, while in some respects favourable to the appellants, omitted to specify that an adverse inference could be drawn only if the jury was satisfied that the appellants had no answer at the time or none that would stand up to scrutiny, and was further deficient in that the judge did not identify the precise facts to which the direction related. There was, however, no criticism of the way in which the judge dealt with the legal advice given to the appellants which at one time was to say nothing. There was no reason for the appellants not to say where they were on the evening of the shooting. The evidence against the appellants was very strong. The jury was bound to find that the defendant's story at trial was made up. Overall, the direction was not unfair.

Click here for the full judgment

Author: LL

September 2006

F19.4 Failure to Reveal Facts Afterwards Relied upon in Court

What approach should the Court of Appeal adopt when the CLRC refer to them cases in which trial judges gave directions concerning the drawing of inferences under the Criminal Justice and Public Order Act 1994, s. 34, that were considered adequate at the time, but which (in light of the ECHR's ruling in Condron v UK (2001) 31 EHRR and later decisions of the Court of Appeal) would now be considered to fall well short of the minimum requirements?

The crucial importance of a full and careful direction in s. 34 cases is something that the Court has repeatedly emphasised (notably in Joseph [2004] EWCA Crim 1616. Where there is any real doubt as to whether the jury would still have convicted, if given such a direction, it is clear that any conviction based on an inadequate one is liable to be quashed: see for example Beckles [2004] EWCA Crim 2766. But this does not mean that a retrospectively inadequate s 34 direction must inevitably undermine the safety of a conviction. The issue and authorities were examined at some length in Boyle [2006] EWCA Crim 2101, in which it was concluded that:

an absolutist approach, particularly to a reference, is not called for. Each case depends on its own circumstances. The essential question is whether any misdirection identified has caused an injustice and whether the Court of Appeal is satisfied that the verdict was safe. In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given. The court should then assess whether, having regard to the jury's verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. Only, of course, if the court is sure that the jury would have been bound to convict can the verdict be said to be safe.

Author: MH

August 2006

F19.8 Failure to Reveal Facts Afterwards Relied upon in Court

Bowden [1999] 1 WLR 823, [1999] 4 All ER 43 was followed and Hoare [2004] EWCA Crim 784 was considered in Loizou [2006] EWCA Crim 1719.

The appellant who had been arrested with others in connection with an alleged money laundering operation, declined to answer questions during her interviews by customs officers (either immediately following her arrest or when she attended a police station several weeks later); but at trial her defence was that she was a mere interpreter who had known nothing of the criminal activities of the persons she had been arrested with. When giving evidence-in-chief in the course of her trial, she explained that she had 'gone no comment' in accordance with her solicitor's advice and that he had advised her that what was alleged 'did not amount to a criminal charge'.

The prosecution then cross-examined her as to why she had not given her account to the officers when interviewed. She replied that her solicitor had advised her not to say anything because there was no connection which would enable her to be charged with money laundering. Prosecution counsel then asked whether she had told her solicitor any of the account she had given in evidence and, following argument, the trial judge ruled that she had waived her legal professional privilege in the course of her evidence-in-chief, and that the prosecution were accordingly entitled to ask her about the basis of her solicitor's advice, and whether she had told him of all the facts on which she now purported to rely. She replied that she had not.

In his speech to the jury, prosecuting counsel suggested that the appellant had recently fabricated her account, and the judge later directed the jury that it was open to them to draw adverse inferences against her, in accordance with the Criminal Justice and Public Order Act 1994, s. 34.

On appeal, it was submitted that the judge had erred in ruling that the appellant had waived her legal professional privilege during her evidence-in-chief. The Court of Appeal was referred to its earlier decision in Wishart [2005] EWCA Crim 1337 from which two main principles could be discerned, namely,

  1. a defendant who merely gives evidence that he made no comment on the advice of his solicitor does not thereby waive his privilege (see Beckles [2004] EWCA Crim 2766 at [43]); and
  2. a defendant (or his solicitor if called) who gives evidence of what was said to the solicitor in response to a prosecution allegation of recent fabrication does not thereby waive privilege.

Hooper LJ, giving the judgment of the court in Loizou, held that on the facts the case could be distinguished from Wishart, but not from Bowden. At [84] he said:

There is a distinction between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the legal advice over and above stating that the refusal to answer questions was as a result of receiving such advice. In the former scenario the reason privilege has not been waived is there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.

Author: MH

5 August 2005

F19.13 Failure of Accused to Testify: previous convictions

In Becouarn [2005] UKHL 55, (2005) The Times, 1 August 2005, the House of Lords holds that where an accused was liable to be cross-examined on his previous convictions, a judge is nonetheless entitled to direct the jury under Criminal Justice and Public Order Act 1994, s. 35 that an adverse inference might be drawn against him if he decided not to give evidence. This is subject to the overriding discretion of the trial judge not so to direct the jury when to do so would be unfair. It would be wrong if a defendant who had attacked the character of prosecution witnesses could avoid having his credibility undermined by reference to his previous convictions, and equally wrong if he could stay out of the witness box but still avoid legitimate comment being made about his failure to give evidence.

The judge should not in such circumstances give the jury a Lucas direction since that might cause the jury to speculate that the defendant had previous convictions, or might set them off on a trail of speculation generally.

Lord Carswell noted that the problems considered above will generally no longer be material following the coming into force of s.101 of the Criminal Justice Act 2003 (in force from 15 December 2004) but eschewed comment on the meaning of that section.

Click here for the full text of the judgement.

Author: LL

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