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Academic, Professional, & General
Blackstone's Criminal Practice 2007
Updates
Part F
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Blackstone's Criminal Practice 2007

Part F

Updates to Part F

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

April 2007

F1.9 Relevance

Hui Chi-ming v The Queen [1992] 1 AC 34 and Cooke (1986) 84 Cr App R 286 were considered by the Court of Appeal in Deboussi [2007] EWCA Crim 684, in which it was held that a jury should in some cases be told of a previous acquittal in a case involving the same facts or witnesses, but only where there was a clear inference from the verdict that the jury in the previous trial had rejected a witness's testimony on the basis that they did not believe him, and where that witness's evidence was directly in issue in the instant trial.

With respect, the fact that a witness's accusations against another person failed to result in conviction cannot demonstrate any such thing. When a jury brings in a not guilty verdict they may be 90% sure that the witness was telling the truth, but acquit on the 10% possibility that he was not.

It may be that the witness was discredited in cross-examination, at the earlier trial, perhaps because he was confronted with irrefutable evidence of his lies, or he may appear to be a serial accuser, but that in each case is another matter. See Hirst, 'Contradicting Previous Acquittals' [1991] Crim LR 510.

This does not mean it is wrong to let a jury know of the previous case, as long as they are told that the acquittal proves nothing in itself.

Author: MH

June 2007

F1.9 Relevance

As to the evidential value of previous acquittals, note the decision of the Court of Appeal in Duckfield [2007] EWCA Crim 4 which is considered at F7.13 below.

Author: MH

January 2007

F1.10 Circumstantial Evidence

In Pinnock [2006] EWCA Crim 3119, the Court of Appeal offered this general observation as to the safety of convictions based upon circumstantial evidence. It accords very closely with the view expressed in Blackstone's Criminal Practice:

It is our experience that Appeals against conviction are all too often launched on the basis that where the Crown has little or no direct evidence upon which it can rely, but invites the court to draw inferences from circumstantial evidence, that this is in itself a good indicator of the weakness of the prosecution case. In our combined experience this is simply not the case. Circumstantial evidence can provide and often does provide a very strong case against an accused person. Provided the inferences the Crown invite the jury to draw from the circumstances are safe and proper inferences, then defence counsel will have a difficult job in persuading this court that a conviction secured upon them is unsafe.

Author: MH

June 2007

F2.18 Prosecutions Founded on Entrapment

Looseley [2001] 1 WLR 2060 was considered by the Court of Appeal in Jones [2007] EWCA Crim 1118. In this case the police became aware that someone was leaving graffiti messages on trains, seeking to entice children for sexual purposes. A journalist and later a police officer responded to the messages, a meeting was arranged and the appellant was arrested when he turned up at the meeting place. He was convicted inter alia of attempting to commit an offence under the Sexual Offences Act 2003, s. 8. Dismissing an appeal in which entrapment was alleged, the court ruled that the police had not instigated the offence. Thomas LJ said (at [23]):

It is clear, in our view, from the appellant's conduct in relation to the journalist, that he was looking for opportunities to incite a child to penetrative sexual activity; the incitement in those communications went beyond what was stated in the graffiti and included a specific incitement to penetrative sexual activity. The police officer's conduct in relation to the appellant followed on from those events. Far from instigating the offence, the police officer's conduct provided only the opportunity for the appellant to attempt to commit a similar offence and provide the evidence necessary for a conviction. The police officer's response to the invitation in the graffiti by pretending to be a child was a necessary pretence to that end; the pretence did not go beyond providing the necessary opportunity for the appellant to attempt to commit the offence by inciting a person whom he believed to be under the age of 13 to engage in penetrative sex. The police officer's replies thereafter to the text messages were entirely acceptable in a covert operation of this kind, as otherwise the nature of her actions would have increased the suspicions of the appellant. It was the appellant who, after he had been told of the person's age, continued and went on to incite penetrative sexual activity on more than one occasion on the days that followed.

Author: MH

April 2007

F3.6 Incidence of the Legal Burden: the Human Rights Act 1998

Lambert [2001] 3 All ER 577; Johnstone [2003] 3 All ER 884 and Sheldrake v DPP [2005] 1 AC 264 were considered and applied by the Court of Appeal in Keogh [2007] EWCA Crim 528, in which it was held that the offences created by the Official Secrets Act 1989, s. 3(4)), could operate effectively without the imposition of the reverse burdens purportedly imposed on defendants by ss 2(3) and 3(4) of the Act, which accordingly were disproportionate and unjustifiable. Because those provisions, if given their natural meaning, were incompatible with Article 6 of the Convention, they were 'read down' by applying a similar interpretation to that achieved by the Terrorism Act 2000, s. 118.

See also B9.60 and B9.66.

The Terrorism Act 2000, s. 118, provides:

  1. Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.
  2. If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Author: MH

August 2007

F4.16 Children and Persons of Unsound Mind

Powell [2006] EWCA Crim 3 was distinguished in DPP v R [2007] EWHC 1842 (Admin), in which a mentally handicapped girl who had made an intelligible video-recorded complaint against a similarly handicapped boy of the same age admitted when cross-examined at the trial that she could no longer remember what had happened. Giving the judgment of the court, Hughes LJ said:

21. This was not a case, on the Justices' findings, of incompetence. The girl may have had her learning difficulties. Her evidence may have needed treating with some care in consequence, but the problem at trial was not capacity to understand or to give intelligible answers, it was loss of memory. Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co exist with absence of competence, but they do not necessarily run together. Persons who have no recollection for an event may be perfectly competent. A simple example is the witness who is knocked out in the course of whatever happened which founds the charges, and has absolutely no recollection of what occurred, but is otherwise fully functioning.

22. This girl was not like the child in R v Powell. She could understand the questions and she could give intelligible answers. The problem was that her perfectly intelligible answer was, "I cannot remember". She was not incompetent. It may be that she could not, for lack of memory, give useful evidence by the time of trial, but that is a different question. The ruling that she was incompetent was erroneous. That does not, of course, mean that such evidence as she had given to the court by way of the video interview was necessarily reliable. The inability to test it by cross examination either might or might not mean that it was unsafe to rely upon it. That, as I previously said, is an assessment which the trial court has to make individually in every case. An account originally given might, in some cases, be so obviously accurate that it would be wrong to discount it. In a good many more cases, no doubt, the inability to test it will mean that one simply cannot know whether what was said in the original account was accurate or not.
The judgment also includes a useful explanation of the procedures to be followed where the witness is indeed found to be incompetent, either at trial or before:
15. If at the time that a court is considering whether to give a special-measures direction enabling video recorded evidence in chief to be received, and is addressing the questions posed on that issue by section 27 of the Act [ie the YJCEA 1999], it then appears that the witness was at the time of the interview unable to understand questions, or to give answers to them which can be understood, then that, of course, would be a reason for not making a special-measures direction under section 27. That is not this case. Competence must also be addressed, it is clear, at the time of trial. If by the time of the commencement of the trial it is clear that the witness is mentally incompetent, according to the test in section 53, then it is open to the court to refuse to receive the video interview under section 27(4) on the grounds that the witness will not be available for cross examination. Ordinarily one would expect that consequence to follow.

16. If, as here, by the time the question of competence is raised before the court the video interview has already been admitted, then it is evidence in the case. Section 27(4) does not extend to permitting the court, retrospectively to direct that it be "unadmitted". What is likely to happen, in such a situation, is that the court may well place little or no weight on the video recorded interview, precisely because it cannot be tested in cross examination. That will not necessarily be so. It will depend upon the assessment of the evidence as a whole, and of the state of the original interview.

17. R v Powell [2006] EWCA Crim 3, which involved a child witness who was only three years of age, was a case of this kind. As the Court of Appeal ruled, she had just about passed the threshold of competence at the time that the video interview was conducted and that had justified the admission of the interview. Once cross examination was attempted it was clear that she did not understand the questions. She did not comprehend the importance of telling the truth, and she was not able to give answers that could be understood. She could be demonstrated at that stage to fail the test under section 53, which is, in substance, a test of intelligibility. The Court of Appeal held in that case that the question of competence should have been reviewed and the case should have been withdrawn from the jury. The reason why it should have been withdrawn from the jury was that in that state of the evidence no reasonable jury properly directed could convict.
Hughes LJ helpfully addressed a further question posed by the justices, although it did not strictly need to be decided on the facts. The question was:
Does the fact that witness has been declared as not competent to give evidence because of a lack of mental capacity, necessarily mean that the witness is then 'unfit to be a witness because of his. . . mental condition' within the context of the CJA 2003, s. 116(2)(b)?
That question was answered (obiter) in the affirmative, and Hughes LJ also briefly addressed the possible use of the CJA 2003, s. 114(1)(d):
25. Section 114 separately provides for the admission of a hearsay statement, that is to say a statement not made in oral evidence in the proceedings, if (amongst other circumstances) according to section 1(d) the court is satisfied that it is in the interests of justice for it to be admissible. The difference between those two sections needs to be noted. If section 116(2)(b) applies then the evidence is automatically admissible, subject only to a possible submission under section 78 of the Police and Criminal Evidence Act. If section 114 alone is available as a possible route to admissibility, the court has a judgment to make and it must apply itself carefully to all the circumstances in the case, including the specific ones set out in section 114(2). Essentially the overall question is whether it is in the interests of justice for the hearsay statement to be admitted. Where it is the sole evidence, it will often, though not necessarily, not be safe to admit it.

26. The submission made on behalf of the defendant to this appeal is that section 116(2)(b) is concerned only with the ability of the prospective witness physically to get to court. [Counsel] says this girl was there at court and present to be asked questions. That means, he says, that she could not be within section 116(2)(b). I am quite satisfied that that is not what the section says. The section addresses fitness to be a witness. Ali Sed [2004] EWCA Crim 1294, [2004] All ER (D) 395 (May) was in fact such a case. The witness was a woman of 81 in the grip of Alzheimer's disease. The disease had significantly worsened between the making of a statement near to the time of the alleged offence and the time of the trial. She had been competent at the time of the former, but she was unable to give evidence by the time of the trial.

27. It seems to me that in almost every case in which a witness is, at the time of the trial, incompetent . . ., he or she will also for that reason, never mind any other, be a witness within section 116(2)(b) who is unable, because of his mental condition, to be a witness. Counsel, who have appeared before us, have been unable to think of an example in which that would not be so. I think we should be careful not to exclude the possibility that circumstances may exist, which it has not been necessary to foresee here, but by and large a witness who is incompetent is likely to be within section 116(2)(b).

. . .

30. We should perhaps record that at least in the case of supervening loss of memory, as distinct from supervening loss of competence, sections 139 and 120 of the Criminal Justice Act 2003 also apply, and the video interview would be admissible as evidence of its contents as a means of refreshing the memory of the witness who had forgotten. We leave for another day the question of whether sections 139 and 120 have any application in the event of supervening incompetence.

Author: MH

June 2007

F5.5 Care Warnings

Makanjuola [1995] 1 WLR 1348 and Hunter [2002] EWCA (Crim) 2693 were considered in Dawes [2007] EWCA Crim 1165. This was a case in which a former accomplice (Barbsy) testifying for the Crown failed to implicate one of the appellants (Smith) in his earlier statements but implicated him extensively in his evidence before the jury. In the absence of Barbsy's testimony Smith would have had no case to answer on two of the counts on which he was convicted, but no warning was given as to whether Barbsy's evidence should be viewed with special caution.

Applying the principles identified in Makanjuola, the Court of Appeal quashed these convictions as unsafe. Scott Baker LJ said (at [78]):

We think the judge should have given a warning. As Lord Taylor . . . said in Makanjuola . . . where a witness has been shown to be unreliable the judge may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints or to bear the defendant some grudge, a stronger warning may be thought appropriate. Of course, as Lord Taylor made clear each case depends on its own particular facts. In the present case Barbsy gave no viable explanation for why he did not implicate Smith in his earlier statements but implicated him extensively in his evidence. Bearing in mind that there was, absent Barbsy, no case against Smith on counts 1 and 2 we cannot be satisfied of the safety of his conviction on those counts and his appeal must be allowed.

Author: MH

March 2007

F6.1 Duty of Prosecution to Call All their Evidence before Closing Case

Jolly v DPP [2000] Crim LR 471 was one of the authorities considered by the Divisional Court in Malcolm v DPP [2007] EWHC 363, in which the prosecution were held to have been rightly permitted to reopen their case in response to a defence submission of no case to answer.

At trial in this drink driving case, counsel for the accused waited until the end of the trial before submitting that the prosecution had failed to prove that the police had warned the accused, when requiring her to provide a specimen of breath for analysis, that she would commit an offence if she failed or refused without good cause to provide the specimen required (see the Road Traffic Act 1988, s. 7(7), Murray v DPP [1993] RTR 209 and Blackstone's Criminal Practice 2007, C5.12.

Now the accused had in any event provided a specimen, so this objection was nothing more than an attempt to exploit a bizarre legal technicality. It is regrettable that the judges in drink driving cases have failed to stamp more firmly on loophole defence of this kind, which no longer have any proper statutory basis, given the abrogation of the notorious 'rule in Scott v Baker' by the Transport Act 1981, the provisions of which were later incorporated within the Road Traffic legislation of 1988. But counsel's tactics were also open to criticism on the basis that she had effectively conducted an ambush defence, and had done so at the very last minute. Stanley Burnton J said:

In my judgment, [counsel's] submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case.

As to the circumstances in which reopening of the prosecution case is permissible, the court in Malcolm v DPP cites and appear to approve of this summary of the relevant principles, given by McKay J in Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin):

  1. The discretion to allow the case to be re-opened is not limited to matters arising ex improviso or mere technicalities, but is a more 'general discretion' (see Kennedy LJ in Jolly v DPP).
  2. The exercise of this discretion should not be interfered with by a higher court unless its exercise was wrong in principle or perverse (R v Tate [1997] RTR 17 at 22C).
  3. The general rule remains that the prosecution must finish its case once and for all (R v Pilcher 60 Cr App R 1 at 5) and the test to be applied is narrower than consideration of whether the additional evidence would be of value to the tribunal (loc cit). The discretion will only be exercised 'on the rarest of occasions' (R v Francis 91 Cr App R 271 at 175).
  4. The discretion must be exercised carefully having regard to the need to be fair to the defendant (Matthews v Morris [1981] JP 262), and giving consideration to the question of whether any prejudice to the defendant will be caused (Tate at 23C).
  5. The courts have in the past differed as to whether the mere loss of a tactical advantage can constitute such prejudice. The defendant, having spotted and drawn attention to a gap in the case by way of submission, as to which he could have remained silent, and taken advantage of that gap at the close of the evidence, was thought in R v Munnery [1992] 94 Cr App R 164 to be an important consideration. However, later cases take a discernibly different approach. A different view was expressed in Khatibi v DPP [2004] EWCA 83 Admin at [25] to [26] and in Leeson [2000] RTR 385.
  6. Criminal procedure, while adversarial, is not a game (see Leeson, Hughes v DPP [2003] EWHC Admin 2470), and the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight.
  7. Of particular significance is the consideration of whether there is any risk of prejudice to the defendant (see Jolly and Tate).'

In those circumstances, it was clearly right that the prosecution should be permitted to respond by recalling the police officer to establish that the statutory warning was in fact given. Stanley Burnton J said:

[There] were special circumstances justifying the recall of Sergeant Webster, notwithstanding the fact that the justices had retired and had partially announced their decision. The only criticism that could be made of the prosecution is that they should have asked to recall Sergeant Webster as soon as [counsel] took the section 7(7) point. But their failure immediately to appreciate the importance of the point is forgivable. Far more important is the question whether justice could be done. The appellant was available to be recalled to dispute the officer's evidence, if it was disputed. In fact it was not. There was no injustice to her. In the circumstances of this case the magistrates were fully entitled to exercise their undoubted discretion as they did.

Author: MH

December 2006

F6.6 Refreshing the Memory

The Criminal Justice Act 2003, s. 139, fell to be considered in McAfee [2006] EWCA Crim 2914. A prosecution witness, who had originally told a series of lies to the police, but later signed a written statement admitting these lies and incriminating the appellant and his co-accused, was permitted at trial to refresh her memory from this written statement, on the basis of her assertion that her recollection had been better at the time at which she had made that statement.

On appeal, it was submitted that the decision to allow her to refresh her memory from this document was wrong, because: (i) there was no proof that her recollection was 'likely to have been significantly better when she made the statement'; (ii) the statement in quetion was neither her original statement nor a contemporaneous one; (iii) that she was a drug taker and had lied to the police on other occasions; and (iv) there was no corroboration of her assertion that her recollection had indeed been better at the time of making the statement.

None of these objections were upheld. The trial judge had been fully entitled to conclude that the conditions prescribed by s. 139 had been satisfied, and there was no longer any requirement the document used to refresh memory must be a contemporaneous one. Nor was there any no good reason for the judge in this case to have exercised his discretion to prevent this witness from refreshing her memory.

Author: MH

June 2007

F6.14 Recent Complaints

Despite the changes made by the CJA 2003, s. 120, to the evidential status of recent complaint, evidence of that kind still cannot provide independent confirmation of a complainant's evidence since it does not come from a source independent of that complainant. A jury must be directed not only that recent complaint is evidence of the truth of what has been stated but that, in deciding on the weight to give such evidence, they must bear in mind that it is not capable of providing independent corroboration of the complainant's evidence. Failure to give such a direction (or worse, any suggestion that the complaint does provide such corroboration) may render a conviction unsafe. See A [2007] All ER (D) 143 (May).

Author: MH

October 2006

F6.16 Statements in Rebuttal of Allegations of Recent Fabrication

Oyesiku (1971) 56 Cr App R 240 was considered in S [2006] EWCA Crim 2272. See F16.17 below.

Author: MH

September 2007

F6.19 Impeaching Credit of Own Witness

Ross [2007] EWCA Crim 1457 demonstrates that evidence of a witness's previous convictions may in some cases be relevant and admissible for purposes other than impeaching credit. D was prosecuted for money laundering offences allegedly connected to drug trafficking, and C, one of D's alleged accomplices in the drug trafficking, was called as a prosecution witness. C was alleged to have accompanied D on drug trafficking trips abroad, and to have sold him a car that also represented criminal property. C had previous convictions for drug-related offences, inlcuding one for possession with intent to supply. Before the trial, the prosecution applied to admit those convictions in evidence. D protested that this would involve discrediting their own witness. Even where a witness is declared hostile, he cannot be discredited in this way by the party calling him.

When the application was made, however, it did not appear to the judge that the prosecution would be doing any such thing. The judge expected C to confirm that the trips made with D were connected with drug trafficking, and in that context his convictions would have tended to 'fit' his testimony, rather than discredit it. In the event, C claimed that the trips were made for quite different purposes, and this gave a wholly different complexion to the evidence of his convictions. There was, accordingly, an irregularity in this aspect of the trial; but despite it the Court of Appeal was satisfied that D's conviction was safe.

Author: MH

July 2007

F6.22 Evidential Value of Previous Inconsistent Statement

In Coates [2007] EWCA Crim 1471 the Court-Martial Appeal Court considered the ambit of the Criminal Justice Act 2003, ss. 119 and 120, in the context of an extraordinary set of circumstances.

At a Naval court-martial, the appellant was convicted of raping the complainant, not on the basis of the evidence she gave against him at trial but on the basis of an earlier account, provided immediately after the alleged incident - an account which she then expressly rejected in the course of her testimony. An added complication was that the complainant had made two other statements in between her first and final versions, in which she appeared to have retained little recollection of the events. Before making the final statement, she had undergone therapy with a doctor of clinical psychology, who specialised in Eye Movement Desensitisation and Reprocessing (EMDR).

As Sir Igor Judge P observed at [27], the problem with these four statements "did not require any substantial analysis":

In the first statement, made on the night in question, the essential allegation is that after kissing for a while the couple had intercourse on the sick bay bed because in the end she gave up trying to say "no". The second and third statements suggest the absence of any memory of the circumstances in which intercourse took place. The fourth statement conveys that intercourse took place notwithstanding the complainant's continuous struggling. Both the first and fourth statements involve allegations of rape, but there are significant differences in the circumstances in which it allegedly occurred.

The court acknowledged that in some circumstances a rape conviction might properly be based on a pre-trial statement, rather than on oral testimony from the complainant. It might indeed be added that such statements may even be relied upon in some cases where the complainant appears to have retracted her story and has become a hostile witness (cf. Joyce [2005] EWCA Crim 1785). By s. 119:

If in criminal proceedings a person gives oral evidence and -
    he admits making a previous inconsistent statement, . . . the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

But as Judge P explained (at [40] and [42]):

The present case is more problematic. The complainant was available to, and did give evidence. She effectively rejected her own first account of the incident. She advanced another, more serious scenario. In the final analysis the conviction was returned notwithstanding the Board's unsurprising rejection of the complainant's oral evidence. Two additional features should be highlighted. Her first statement would have left open the possibility of inebriated misunderstandings about the complainant's attitude to sexual activity with the appellant, whereas the fourth statement and her evidence excluded the possibility that intercourse took place on the basis of some such misunderstanding. The second is that in the context of the first account, the alcohol consumed by the complainant may have had a possible impact on whether or not she may have consented to intercourse, and subsequently regretted it, whereas on the account she actually gave, the alcohol had no effect at all. However much she had consumed, she struggled, as best she could in the limited space, throughout the incident. These differences are not immaterial, and their significance is undiminished by the Board's rejection of the appellant's assertion of her enthusiastic participation.

. . .

On a strict application of the language of [s. 119], the statutory conditions governing admissibility were fulfilled. However we emphasise that the overall discretion of the court under section 78 of the Police and Criminal Evidence Act 1984 in relation to the fairness of proceedings applies to evidence which falls within these statutory criteria. It is critical to the analysis that the complainant did not support any version of events which she had given before she saw Dr McGowan. Everything she said afterwards about the incident, whether in her statement or her testimony, was, as the judge found, 'unreliable', and should have been treated as such.

In the court's view, it was therefore wrong for the court-martial to convict the appellant unless satisfied of the truth of the complainant's oral testimony.

As to the dangers of relying upon recollection supposedly "restored" under therapy, see H and G (No 2) [2005] EWCA Crim 1828.

Author: MH

April 2007

F7.1 Cross-examination: General Considerations

The Criminal Procedure (Amendment) Rules 2007 (SI 2007 No. 699), which came into force on 2 April 2007, include changes to the Criminal Procedure Rules 2005 which affect cross-examination. Part 31 (restriction on cross-examination by a defendant acting in person) is amended so that the rules in that Part apply in magistrates' courts as well as in the Crown Court.

Author: MH

July 2007

F7.8 Rules Governing Conduct of Cross-examination

The assertion in Blackstone's Criminal Practice 2007 that, "Counsel should not state what somebody else has said or is expected to say. The time for statements such as 'The defendant's recollection is . . . ' or 'The defendant will say . . . ' is the opening speech; such statements should not be made, or put in the form of a question, in cross examination . . . " was expressly endorsed by the Court of Appeal in Kepple [2007] EWCA Crim 1339. The appellant in this case absconded before arraignment and the trial proceeded in his absence, but the trial judge ruled that when his counsel was cross-examining prosecution witnesses in accordance with the appellant's earlier instructions, "his questions could not be put in any significant detail, because to do so would be to be putting his client's instructions, and those instructions counted for nothing in the absence of evidence".

Quashing the appellant's conviction, Thomas LJ said (at [27]):

In our judgment, counsel for the appellant was entitled to ask questions of witnesses for the prosecution in as much detail as he wished based on his instructions, but without indicating what the appellant's evidence might have been and in the knowledge that he would not be able to call evidence to contradict the answers given. He was entitled to conduct cross examination on this basis in the hope of either showing that his absent client's instructions were accepted by the witnesses or casting doubt upon the coherence or accuracy of their accounts. The ruling, however, had the potential effect of preventing counsel doing this. If it in fact did so, then it rendered counsel's presence at the trial largely nugatory and removed the valuable safeguard provided by that attendance to put the appellant's case based on his instructions. Although this was a case that in the circumstances could properly, as the judge had found, be tried in the absence of the appellant, the effect of the ruling could be thereby to deny the appellant the right to a fair trial which the common law afforded him and which was guaranteed by Article 6.

Author: MH

August 2006

F7.13 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

June 2007

F7.13 Protection of Complainants in Proceedings for Sexual Offences

and

F7.20 Finality of Answers to Questions on Collateral Matters

The right of the defence in a sex case to cross-examine a complainant as to allegedly false complaints made by her on other occasions (an issue which was only recently considered by the Court of Appeal in V [2006] EWCA Crim 1901) was considered once again in Duckfield [2007] EWCA Crim 4.

The court in V ruled that any cross-examination genuinely directed towards establishing that the complainant had made a previous false complaint about a sexual matter falls outside the Youth Justice and Criminal Evidence Act 1999, 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 (following T; H [2002] 1 WLR 632). In Duckfield, D faced accusations of sexual abuse from several girls. All but one of these girls had previously made complaints of sexual abuse against other men; and in the case of his first accuser, S, those accusations (supported by her sister, L) had resulted in a trial in 1998, at which the jury had acquitted the man (A) she had accused.

D's counsel was permitted to ask each of the complainants (including S) whether they had made allegations of this kind before, but was not permitted to take the matter any further, this being a collateral issue and subject to the finality rule. He was not permitted to call A to testify as to falsity of the complaints made against him, and counsel decided not to ask any of the complainants whether their earlier complaints had been true, because he would have had to accept whatever answer they gave. D was acquitted on several counts, but convicted on five of the seven counts concerning the complaints made by S.

The Court of Appeal dismissed D's appeal against conviction. Having considered both the YJCEA 1999, s. 41 and the CJA 2003, s. 100, the court took the view that, "Allowing [D] to ask questions about the making of the previous complaint was in the circumstances, if anything, generous to [him]". It was possible, said the court (without deciding the point) that if A was allowed to testify, his evidence would have provided the 'proper evidential basis' required under T, H and V (whereas his acquittal, on its own, proved nothing of the kind); but the court was satisfied that the threshold of 'substantial probative value' was not met for the purposes of giving leave under the CJA 2003, s. 100. Toulson J said (at [24] to [25]):

[Counsel] wanted to cross-examine S and L, and to call A, effectively to retry the issue of A's guilt. We say that for this reason: the only way in which the jury in the present case could properly have decided whether the earlier complaint was well-founded would have been by having effectively a trial within a trial about matters which had occurred nearly nine years earlier. In our judgment, one only has to consider that to appreciate the unsatisfactory nature of the exercise.

To have embarked on the exercise of determining whether the earlier complaint was true, for the purpose of considering whether S and L may have been guilty of collusion in relation to the recent allegations, would have been a distracting and almost certainly unproductive exercise.

Such a procedure would not have been permitted at common law and s. 100 was not intended to change that position.

The ruling is Duckfield is not altogether surprising, but it is, with respect, disturbing. The Court of Appeal would it seems have been prepared to dismiss D's appeal even if he had not been allowed to raise the issue of previous unproven complaints at all. Now, it is perfectly correct to say that a previous acquittal proves nothing (see my earlier note on Deboussi [2007] EWCA Crim 684 (April 2007, F1.9) but as a juror I would be very concerned to discover that all but one of D's several accusers were in fact 'serial accusers', because that surely is a remarkable coincidence. The jurors in Duckfield were at least made aware of these earlier complaints, as a result of the trial judge's 'generosity'.

In the circumstances it seems strange that the jury managed to doubt the credibility of the various complainants (including S herself) on 12 of the 17 counts, and yet trust her sufficiently to feel sure of D's guilt in respect of the remaining five, but the Court of Appeal will rarely accept that such verdicts are in any sense inconsistent (see Blackstone's Criminal Practice, D24.43) so that argument is not one that can usefully be pursued.

Author: MH

November 2006

F7.14 Lifting the Restriction on Evidence about the Complainant's Sexual Behaviour

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect evidence about a complainant's sexual behaviour. A wholly new set of rules on applications to lift the restriction are contained in part 36.

Author: MH

November 2006

F7.24 Medical Evidence of Disability Affecting Reliability

Robinson [1994] 3 All ER 346 was distinguished in S [2006] All ER (D) 63 (Oct), in which the evidence of an autistic 13-year-old complainant was supported by that of a distinguished paediatrician "vastly experienced in the field of autism" who was permitted to opine that in his view it was unlikely that a child such as the complainant would have been capable of fabricating such a story.

No full transcript of this case was available at the time of writing. At first sight, it is difficult to see any obvious basis on which Robinson could properly have been distinguished. The full transcript may however make things clearer.

Author: MH

November 2006

F10.3 Expert Opinion Evidence

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect expert evidence. There is a wholly new set of rules on expert evidence in part 33. Part 33 sets out the duty of an expert to the court and the required content of an expert's report and includes a power for the court to order that defence expert evidence will be given by a single joint expert.

Author: MH

June 2007

F10.5 Expert Opinion Evidence - States of Mind

Henry [2006] 1 Cr App R 118 was applied in Pelham [2007] EWCA Crim 1321, in which it was held that expert evidence was inadmissible on the question whether D, who suffered from learning difficulties but had an IQ of 73 or above, could have possessed the mens rea for an offence of racially aggravated harassment. The Court of Appeal considered that the jury had been quite capable, without hearing expert evidence, of assessing D's mens rea or her ability to understand.

Author: MH

November 2006

F10.6 Credibility

Robinson [1994] 3 All ER 346 was distinguished in S [2006] All ER (D) 63 (Oct), in which the evidence of an autistic 13-year-old complainant was supported by that of a distinguished paediatrician "vastly experienced in the field of autism" who was permitted to opine that in his view it was unlikely that a child such as the complainant would have been capable of fabricating such a story.

No full transcript of this case was available at the time of writing. At first sight, it is difficult to see any proper basis on which Robinson could properly have been distinguished. The full transcript may however make things clearer.

Author: MH

November 2006

F10.14 Expert witnesses: Competence and Weight to be attached to Evidence

Stubbs (Paul Matthew) [2006] EWCA Crim 2312 concerns the qualification of expert witnesses and the admissibility and weight to be given to the evidence of an expert who is in some way associated with a financial institution through which a fraud has been perpetrated. The defendant was a password reset clerk employed by HSBC. AT&T had an account at HSBC from which large sums of money were stolen. The defendant was convicted of conspiracy to defraud. In part, his appeal concerned a challenge to an expert witness, a Mr. Roddy, who was an HSBC employee, on the footing that while he could give evidence about the setup within HSBC and the way the system (the Hexagon system) was intended to operate he lacked technical expertise in relation to the functioning of computers. It was further objected that, as an HSBC employee and a member of the technical team trained on the Hexagon system, he lacked objectivity. The trial judge admitted Mr. Roddy as an expert witness.

The Court of Appeal held that the trial judge properly applied the test in Bonython [1984] SASR 45 according to which the judge must decide (1) whether the subject matter of the opinion falls within the class of subjects upon which expert evidence is permissible; and (2) whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the court. The Court held that both tests were satisfied. As to objectivity, arguably the more important issue, the Court followed Gokal (unreported 11 March 1999), holding that the extent of the witness' independence goes to weight not admissibility. In this case there were no features of the evidence of the witness that could support a case of conscious bias or lack of objectivity.

Author: LL

November 2006

F10.15 Pre-trial Disclosure of Expert Evidence

The Criminal Procedure (Amendment No. 2) Rules 2006 (SI 2006 No. 2636) amend the Criminal Procedure Rules 2005 and, in particular, affect expert evidence. There are amendments of r. 24.1 as well as a wholly new set of rules on expert evidence in part 33.

Author: MH

December 2006

F11.2 Convictions as Evidence of Facts on which Based

Kordansinki [2006] EWCA Crim 2984 holds that the rule in Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35, which clearly survived the enactment of the Police and Criminal Evidence Act 1984, ss. 73 and 74, has nevetheless been abrogated by the Criminal Justice Act 2003, s. 99(1) (bad character: abolition of common-law rules). Evidence of the appellant's convictions for rape and kidnapping before a court in Poland were accordingly held to be admissible for the purpose of proving that he did in fact convict the offences of which he was convicted.

The decision in Kordasinski is perhaps a little surprising. The rule in Hollington v Hewthorn focused not so much on the admissibility of evidence of bad character per se as on the evidential value of the findings of another court. A conviction or acquittal (or a civil ruling) by some other court was seen as nothing more than the opinion of that particular court based on whatever evidence had been put before that court. You could not prove in a civil case that D's employee had been to blame for a road accident by proving that a magistrates' court had convicted that employee of careless driving. The earlier court's finding infringed both the hearsay rule and the rules excluding evidence of non-expert opinion. It was not therefore obvious that s. 99 of the 2003 Act was intended to abrogate the rule and some commentators assumed it did not. Even where evidence of D's propensity to rape is admissible under the Criminal Justice Act 2003, it might still have been argued that something more than evidence of a foreign conviction was required to establish that propensity.

Little now is left of the rule in Hollington v Hewthorn. But a foreign conviction still lacks the status of a domestic conviction under the Police and Criminal Evidence Act 1984, s. 74, which is presumed to be justified unless the contrary is proved.

Author: MH

April 2007

F11.2 Convictions as Evidence of Facts on which Based

Following its ruling in Kordasinski (also reported sub nom Kordansinki) [2006] EWCA Crim 2984 (discussed in the December 2006 update) the Court of Appeal has certified the following question for possible consideration by the House of Lords:

Where a defendant in criminal proceedings in England has previously been convicted of a criminal offence in a court of a foreign state, are the documents which recorded and gave details of the conviction and which were duly authorised and proved under s 7 of the Evidence Act 1851 admissible as evidence to show that the defendant committed the foreign offence, where his commission of such an offence is admissible against him in the English proceedings by virtue of s 101(1) of the Criminal Justice Act 2003?

Author: MH

May 2007

F11.6 Relevance and Admissibility of Acquittals

Z [2001] 2 AC 483 was considered in Boulton [2007] EWCA Crim 942. At D's trial on charges that included the rape and false imprisonment of his pregnant partner, evidence was admitted, under the Criminal Justice Act 2003, s. 101, from his former girlfriend, E, who made similar accusations of rape. D had however been acquitted of that offence.

It was conceded that E's evidence was not rendered inadmissible merely because of the acquittal, but an issue did arise as to the significance, if any, of that acquittal. The trial judge directed the jury that the earlier acquittal was irrelevant and could not assist them in resolving the issues raised by E's evidence.

The Court of Appeal opined that the better course would have been to have told the jury that the earlier acquittal meant no more than that the jury on that occasion were unsure of the evidence given by E. But if the judge was in error (and the court seems to have stopped short of saying so) it could not have affected the safety of the conviction.

See also the note on Deboussi [2007] EWCA Crim 684 in last month's update at F1.9.

Author: MH

August 2007

F11.6 Relevance and Admissibility of Acquittals

Z [2000] 2 AC 483 was considered in L [2007] All ER (D) 81 (Jul), in which at a trial for rape at which the defence was consent, evidence was admitted as to a single previous incident in which D had been acquitted of a similar offence in respect of a girl of similar age to the present complainant. The defence on that earlier occasion had been that no intercourse had occurred. Testimony of the former complainant was put before the jury on the basis that it was capable of proving a propensity to commit sexual offences against young girls.

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

June 2007

F12.2 Bad Character

Tirnaveanu [2007] EWCA Crim 1239 provides welcome guidance as to the difference between evidence of bad character within the meaning of the CJA 2003, s. 98, and evidence of misconduct that 'has to do with the alleged facts of the offence with which the defendant is charged'.

D was convicted of a number of immigration offences relating to the making, of a false French identification card and several offences involving a Romanian immigrant called Monica Halarescu, including the forgery of a passport for her. He denied all responsibility for this and argued that some other person (the offender) had been impersonating him.

The police searched D's properties and discovered documents relating to other Romanians, whom the prosecution contended were illegal immigrants. The prosecution were permitted to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants. It was alleged that he had been acting as a lawyer and dealing with many such illegal immigrants.

It was contended on behalf of D that the judge was wrong to admit the evidence and, having admitted it, had failed to give proper directions to the jury.

On appeal, It was accepted that the evidence in question was evidence of misconduct, but the Crown argued that it was not subject to the bad character provisions of the 2003 Act because 'had to do with the alleged facts of the offence with which the defendant is charged'. See Machado [2006] EWCA Crim 1804, and McIntosh [2006] EWCA Crim 193. The court rejected this argument. Thomas LJ said:

It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce.

On the other hand, if one of the gateways under s. 101 is satisfied and the evidence is admitted, (e.g. as important explanatory evidence or as evidence of disposition) it no longer matters whether that evidence might alternatively have been admissible without reference to those provisions. In this case, the additional evidence was clearly admissible under s. 101(1)(d), as it was relevant to an important matter in issue between D and the prosecution - namely whether it was he who had committed the offences and not some other person.

It is true that evidence which is admissible under s. 101(1)(d) is subject to possible exclusion under s. 101(3), whereas that would not be true of evidence which is exempt from the CJA provisions altogether; but any prosecution evidence, whether it falls under the CJA 2003 or not, is subject to the courts' residual discretion to exclude under the PACE 1984, s. 78(1): see Highton [2005] 1 WLR 3472 at [44].

Author: MH

August 2007

F12.2 Bad Character

Possession of violent images and rap lyrics referring to intended violence on D's birthday (the day on which he was accused of committing a violent assault) were held to be admissible evidence of bad character in Saleem [2007] EWCA Crim 1923.

An issue arose as to the adequacy of the trial judge's directions to the jury concerning the uses they might make of this evidence. The court was critical of the judge in that respect; but in Campbell [2007] EWCA Crim 1472 (considered in the July update) Lord Phillips CJ questioned the need to allow appeals against conviction on the basis of a failure to direct a jury as to matters that might in any case be left to the jury's common sense. This was noted and applied in Saleem, where the court concluded that:
The real issue for the jury to decide . . . was the reason for [D's] presence in the park in the vicinity of the attack at that time of night. It seems to us that a jury considering the evidence of the rap lyrics and the violent images with logic and common sense could only have concluded that the evidence was relevant to that issue, as it went to disproving an innocent explanation. . .

Although the judge should have given the jury much more help than he did, we do not consider that his failure to do so rendered the conviction unsafe, as the jury would have appreciated the relevance of the evidence.

Author: MH

August 2007

F12.2 Bad Character

Technically, the prosecution rely on 'evidence of bad character' if they use circumstantial evidence to show that D was involved in a series of similar offences, even if that evidence is not used for the purpose of suggesting that he has any criminal propensities or to be untruthful. The prosecution ought therefore to make an application under the Criminal Justice Act 2003, s. 101 before adducing such evidence and the judge ought to rule on that issue. But in Wallace [2007] EWCA Crim 1760 the Court of Appeal (having gained some assistance from the judgment of the Lord Phillips CJ in Campbell [2007] EWCA Crim 1472) ruled that as a matter of common sense this did not really matter:

33. We very much doubt whether the draftsman of the bad character provisions in the 2003 Act had in mind cases such as the present where the issue for the jury is the inference to be drawn from circumstantial evidence . . .

43. This was not a case in which the judge was required to give any bad character direction to the jury. He properly directed the jury about the relevance of the evidence as circumstantial evidence and the fact that it was or may have been bad character evidence that should technically have required admittance through s.101 gateway was neither here nor there.

44. It would of course always be possible in a case such as the present where evidence falls technically within the definition of bad character, albeit its admission is received for some quite different purpose, for the parties to agree to its admission under s.101(1)(a). That in our view would be the simplest course. It did not happen in this case. But if, as appears to us to be the position, the evidence in question did fall within the wide definition of "bad character" there should strictly speaking have been an application to admit it under s.101(1)(d). Had there been such an application it would inevitably have been successful. No "bad character" direction to the jury would have been necessary. Indeed no reference to "bad character" in the commonly understood sense of the words would have been necessary at all. The case should, and no doubt would, have been summed up just as it was, as a case that depended on circumstantial evidence.

45. We are completely satisfied the appellant's conviction is safe. . .

Author: MH

June 2007

F12.3 The 'Shield' under the Criminal Justice Act 2003

Cases in which a large proportion of a trial is taken up with the collateral issue of the previous behaviour of the defendant should be avoided if possible so that the issues in the trial do not become distorted. A trial judge must also endeavour to give the jury appropriate assistance in relation to such collateral issues: Sutton [2007] All ER (D) 254 (May).

Author: MH

July 2007

F12.4 New Statutory Gateways

Campbell [2007] EWCA Crim 1472 is one of the most significant cases yet reported on the application of the bad character provisions of the Criminal Justice Act 2003 and on how the relevant principles should be explained to the jury. Unusually, it includes criticism effectively amounting to disapproval of some parts of the relevant Judicial Studies Board specimen directions.

The basic facts of the case in question were unremarkable. D appealed against his convictions for false imprisonment of a woman and for assaulting her, occasioning actual bodily harm. The jury were told that D had two previous convictions for offences of violence against women, each of which followed a guilty plea. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to s. 101(1)(d) of the Act. This was explained to the jury, in accordance with the Judicial Studies Board's specimen directions, but the judge also directed them that they could take the convictions into account in deciding whether or not D's own evidence had been truthful. They were told that,

A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You must decide to what extent, if at all, his character helps you when judging his evidence.

On appeal, it was argued that two previous offences of violence, to which D had pleaded guilty, had no bearing on his propensity to tell the truth. The judge therefore should not have directed the jury that D's previous convictions might have any possible relevance to his credibility.

The appeal was dismissed, not because the Court of Appeal approved of the directions given, but because any defects in the summing up were not such as to have had any likely impact on the safety of the convictions.

The real importance of the case lies in the court's wider analysis of the law relating to directions on bad character, and indeed to the importance of specimen directions generally. Signalling a significant departure from some previous decisions of the court, Lord Phillips CJ warned (at [23]) that a trial judge's failure to provide a jury direction in accordance with a relevant specimen direction should no longer automatically be treated as a ground of appeal, let alone as a reason to allow an appeal. One should ask instead whether a jury would have reached the same conclusion by the application of common sense to the evidence, whether or not the specimen direction was given.

Pausing there, it would be useful to know how many of the specimen directions can be said to be non-essential or non-critical on the basis that they deal with matters of common sense that might instead be left to the jury. Directions as to the possible relevance of D's good character perhaps?

Lord Phillips continued:

24. The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.

25. We reject [counsel's] submission that the jury can only use evidence of bad character for a particular purpose if it could have been introduced through the relevant gateway. Once the evidence has been admitted through a gateway it is open to the jury to attach significance to it in any respect in which it is relevant. To direct them only to have regard to it for some purposes and to disregard its relevance in other respects would be to revert to the unsatisfactory practices that prevailed under the old law.

His lordship later made some common-sense observations that are nevertheless radical in their rejection of orthodox doctrine:

28. In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.

. . .

30. The question of whether a defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue between the defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal of criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies.

31. For these reasons, the only circumstance in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under section 103(1)(a).

Finally, Lord Phillips criticised the form of the then current specimen directions on evidence of a defendant's bad character:

37. We would make the following observations about these specimen directions. They direct the judge to identify the gateway or gateways through which the bad character has been admitted by reference to the wording of the Act. We question the desirability of this. It is right that in Edwards the Vice-President said that 'it should be explained why the jury has heard the evidence' but we think that reciting to the jury the statutory wording in relation to the relevant gateway is likely to be unhelpful. It cannot assist the jury to be told "this evidence has been admitted because it may help you to resolve an issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences of the kind with which he is charge". Nor is that part of the specimen direction that relates to gateway (f) likely to assist the jury.

38. If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted.

39. In the rare case where evidence of bad character has been admitted because the question of whether the defendant has a propensity to be untruthful is an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which make that matter important. 40. Where evidence of a criminal or otherwise blameworthy act on the part of the defendant is adduced because it bears on a particular issue of fact and this evidence has no bearing on the defendant's propensity to commit the offence charged, this should be made plain to the jury.

41. In general we do not consider it helpful to include this passage of the specimen direction:
You may also use the evidence of the defendant's bad character in the following ways: If you think it right, you may take it into account when deciding whether or not the defendant's evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so
The reason why this is of little assistance is not because it is not accurate but because a defendant's lack of regard for truthfulness is, of itself, normally of limited assistance when deciding whether in the instant case he is telling the truth, as we have explained earlier.

42. We also question whether it is helpful to tell the jury that they can, if they think it right 'take the evidence into account when deciding whether or not the defendant committed the offences with which he is charged'. The only reason that the jury have heard the evidence is that it may assist them in deciding that question and they hardly need to be told this in those terms.

43. It is, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.

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

June 2007

F12.6 Notice

and

F12.25 Evidence of Misconduct or Disposition Adduced by a Co-accused

In Musone [2007] EWCA Crim 1237, the Court of Appeal confirmed that a judge ordinarily has no discretion to exclude evidence that satisfies the threshold for admissibility under the CJA 2003, s. 101(1)(e), but went on to consider possible sanctions for failure to give notice of intent to raise issues of bad character under that provision. The CrimPR 2005, r. 35.5 (which is not affected by amendments made under SI 2006 No. 353) requires that:

A co-defendant who wants to introduce evidence of a defendant's bad character or who wants to cross-examine a witness with a view to eliciting that evidence under section 101 of the Criminal Justice Act 2003 must give notice in the form set out in the Practice Direction to the court officer and all other parties to the proceedings not more than 14 days after the prosecutor has complied or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996.

In this case, the appellant had sought on the 10th day of a joint murder trial to adduce evidence that his co-accused, Chaudry, had admitted committing another murder of which he had been acquitted 12 years previously. The trial judge ruled that the evidence of this confession was of substantial probative value in relation to an important matter in issue between the appellant and Chaudry. If the jury accepted that Chaudry had confessed to committing that earlier murder then the judge was entitled to take the view that that was evidence which suggested that it was he who had committed the instant offence and not the appellant. It may also have suggested that Chaudry was someone who would lie in his own defence.

The Court concluded that a remedy had to be available in cases where an accused was guilty of a deliberate and prejudicial failure to comply with the requirements of the CrimPR. Moses LJ said:

59. In our view it is not possible to see how the overriding objective [in the Crim PR r. 1] can be achieved if a court has no power to prevent a deliberate manipulation of the rules by refusing to admit evidence which it is sought to adduce in deliberate breach of those rules.

60. We emphasise that cases in which a breach of the procedural rules will entitle a court to exclude evidence of substantial probative value will be rare. A court should be most reluctant to exclude evidence of that quality by reason of a breach of the procedural code. Nonetheless, there will be cases, of which the instant appeal is an example, where the only way in which the court can ensure fairness is by excluding evidence, even when it reaches the quality described in section 101(1)(e). It should be remembered that the court was compelled to assume the truth of the evidence that Chaudry confessed to murder. Section 109 gives rise to a stark choice between either an assumption that the evidence is true or rejection of its truth on the grounds that no court or jury could reasonably find it to be true. But in reality, as the judge himself remarked in his ruling, there will be evidence which, although capable of belief, is improbable and unlikely to be believed. Whilst the judge is compelled to assume the truth of such evidence for the purposes of section 101(1)(e), he need not take so extreme a view when considering whether to prevent the unfair effect of a breach of the procedural rules by excluding the evidence. The more credible the evidence, the less likely it is that the judge will exclude it on grounds of a breach of a procedural requirement. But where, as in the instant case, the evidence is improbable, the judge is entitled to take that factor into account in deciding whether to exclude it, in circumstances where the rules have been deliberately breached.

61. We acknowledge that one remedy which the judge ought to consider is whether to discharge the jury so as to give the co-defendant a proper opportunity of dealing with the new allegation advanced without any notice. But in many cases, and certainly in this appeal, to discharge the jury in such circumstances would be wrong. It would be unfair to the prosecution and might be a great unfairness to a co-defendant whose case might be faring rather better than that of the defendant seeking to adduce the surprise evidence at the last minute. Indeed, to discharge the jury at that stage may be to give the defendant manipulating the rules the very thing he is seeking to achieve.

62. We conclude that the requirements of a fair trial for all defendants, enshrined in Article 6, are met by the proper application of the 2005 Rules, contained within Part 35 and Part 1.

Author: MH

November 2006

F12.7 Explanatory Evidence

The concept of 'important explanatory evidence' was given a broad interpretation in Pronick [2006] EWCA Crim 2517. At the appellant's trial for the attempted rape of his partner, evidence of a previous rape allegedly committed against her (of which no complaint had been made at the time) was held to have been properly admitted (along with evidence of various acts of violence) as explanatory evidence under the Criminal Justice Act 2003, s. 101(1)(c).

Counsel for the appellant opposed the application to invoke s. 101(1)(c) on the basis that (as Latham LJ put it):

The issue between the prosecution and the defence was perfectly understandable without the previous incidents being led in evidence: the appellant had himself accepted, as we have said, in his interview with the police that the relationship was volatile; that was all the jury needed to understand in order to come to a conclusion as to whether or not the prosecution's case had been made out against the appellant.

With respect, there would appear to have been considerable force in that submission. If the evidence was relevant at all, it was surely more akin to 'similar fact' evidence than to evidence of the Pettman variety, and if so it fell more properly within the ambit of s. 101(1)(d), in which case it would have been open to counsel to apply (albeit with no guarantee of success) for its exclusion under s. 101(3). The line between those two kinds of evidence has been blurred more than once before (see cases cited in the main text at F12.8) but this case does little to resolve the confusion.

Author: MH

April 2007

F12.8 Explanatory Evidence and Evidence to Prove Issue Distinguished

Pettman (unreported 2 May 1985) and Fulcher [1995] 2 Cr App Rep 251 were considered by the Court of Appeal in Osbourne [2007] EWCA Crim 481. The issue in this case was whether at the appellant's trial for murder the judge had been right to admit evidence that when the appellant failed to take medication prescribed for schizophrenia, he became aggressive and tended to shout at his former partner. It appears that the appellant had not taken this medication for some months prior to the killing with which he was charged.

The Crown argued that this was evidence of bad character (namely reprehensible behaviour falling short of criminal behaviour) and was admissible under the Criminal Justice Act 2003, s. 101(1)(c), as 'important explanatory evidence' without which the jury would find it difficult properly to understand and evaluate the other evidence in the case.

The Court of Appeal disagreed. Giving the judgment of the court, Pill LJ said (at [34]):

In the context of this charge of murder, we do not accept that shouting at a partner in the manner described can amount to reprehensible behaviour within the meaning of s. 102 [meaning s. 112] of the 2003 Act. Shouting between partners over the care of a very young child is not of course to be commended but in the context of a charge of murdering a close friend, it does not cross the threshold contemplated by the words of the statute. Further, it is not in our judgment "important explanatory evidence" within the meaning of s. 101(1)(c) or admissible as background history relevant to the offence charged.

With respect, once the court had decided that this was not evidence of reprehensible behavior (or bad character), the specific constraints of the CJA 2003 no longer applied. If relevant in some way, the evidence would accordingly have been admissible even if none of the s. 101 gateways applied. In other words, it was the appellant, and not the Crown, who had an interest in submitting that this was evidence of bad character.

In the end, nothing turned on this question. The court concluded that the evidence lacked any true relevance, and irrelevant evidence is never admissible. The court upheld the appellant's conviction on the basis that, in light of the trial judge's summing-up, there was no real possibility that the jury would have regarded the evidence as in any way supporting the prosecution case.

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

June 2007

F12.12 Proof of Propensity

Hanson [2005] 2 Cr App R 21 was considered in McDonald [2007] EWCA Crim 1194, in which the Court of Appeal emphasised once again the importance of a clear and accurate direction as to the difference between evidence of propensity to commit an offence and evidence of a propensity to be untruthful. The trial judge in this case admitted evidence of D's previous convictions for offences of the same kind as those with which he was now charged. They were admitted as relevant only to a propensity to violence etc; but in summing up the judge suggested that the convictions were also relevant to D's credibility. Giving the judgment of the court, quashing D's convictions, David Clarke J said:

The judge expressly admitted these convictions for the purpose which we have indicated. He did not admit them as being relevant to any question of propensity to be untruthful; that is to say, he admitted them under section 103(1)(a), rather than 103(1)(b) of the Act. Nor, in our judgment, did they have any relevance to the issue of untruthfulness. They were offences of violence, including dishonesty in the case of the robbery conviction, but that is not the same as untruthfulness, as is apparent from the judgment of the Vice President in Hanson . . . The appellant had pleaded guilty to both and had not sought to deceive the court on either of those prior occasions.

This rule is now well established. It has however been held that in other contexts such convictions may indeed be put forward as relevant to credibility (notably in cases where a defendant seeks to discredit a witness or co-defendant who gives evidence against him). See for example Stephenson [2006] EWCA Crim 2325 (noted in the January 2007 update).

Author: MH

August 2007

F12.12 Proof of Propensity

Following the dismissal of the appellant's appeal in Campbell [2007] EWCA Crim 1472 (as to which see the July update), the following point of law of general public importance was involved in the decision, namely, whether, and in what circumstances, a juror might have regard to evidence of a person's bad character that had been admitted under a gateway in Ch 1 of Pt II of the Criminal Justice Act 2003 for a purpose other than the one or ones for which that gateway had rendered it admissible: Campbell [2007] All ER (D) 297 (Jul).

Author: MH

December 2006

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

The difference between the old and new regimes governing the admissibility of bad character evidence for the purpose of proving guilt is illustrated by Abnett [2006] All ER (D) 244 (Nov), where the appellant was charged with involvement in an armed robbery. Firearm discharge residue was found on his clothing, but the residue had not come from the gun used in the robbery, and seems to have suggested, not that the appellant must have been one of the robbers, but merely that he was the kind of villain who might well have been. There was no obvious striking coincidence here: the discovery of such residue might have been expected if the police had set out to round up 'known robbers'. It was nevertheless held to be admissible as proof of propensity under s. 101(1)(d).

The Court of Appeal held that three questions had to be considered before such evidence was admitted at trial: (i) whether the accused's character established a propensity to commit offences of the kind charged; (ii) whether that propensity made it more likely that he had committed the offence charged; and (iii) whether it was unjust to rely on that evidence, and, in any event, whether the proceedings would be unfair if they were admitted.

In contrast, even under the new law an old conviction for indecent exposure has been held not to provide evidence of propensity on a charge of rape, or to affect the defendant's credibility: Leaver [2006] EWCA Crim 2988.

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

January 2007

F12.20 Multiple Charges and Accusations at Common Law and under the Criminal Justice Act 2003, s. 101(1)(d)

The 'sea change' that has occurred in consequence of the Criminal Justice Act 2003 was noted in Chopra [2006] EWCA Crim 2133. The right way to deal with the new law was not, said the court, to begin by asking what would have been the position under the old. Whereas, under the old law, evidence of D's propensity to commit offences of the kind now alleged against him was prima facie inadmissible, such evidence is prima facie admissible under the Criminal Justice Act 2003.

Where, as in Chopra, the prosecution seek to establish D's propensity by calling evidence of complaints made by a number of complainants over a period of time, and none of these complaints has yet been proved, the truth or falsity of those complaints is a question which the jury must answer. The position may be different where propensity is advanced through proof of a previous conviction which may be incapable of contradiction. However, the 2003 Act governs all evidence of bad character, not only conclusive or undisputable evidence.

As was the case at common law, there has to be sufficient connection between the facts of the several allegations before they can establish a propensity to offend in the manner charged. But the answer to the question whether the evidence does so is not necessarily the same as it would have been at common law. The test now is the simple test of relevance under s. 101(1)(d), rather than the somewhat stricter test established at common law in cases such as DPP v P [1991] 2 AC 447.

Hughes LJ said (at [23] to [24]):

When considering admissibility the judge is required to assume that the evidence is truthful unless no jury could reasonably believe it - CJA 2003, section 109. Whether it is in fact truthful is for the jury. Secondly, propensity to commit an offence is still propensity to do so even if it be a common offence or one which can readily be imagined by someone bent on making a false allegation. Even before the passage of the 2003 Act, the suggestion which had at one time found favour . . . that similar fact evidence had to go beyond the so-called stock in trade of the sexual offender had been discredited - see DPP v P.

In saying what we have, we are not to be taken to hold that all evidence of other alleged offending is necessarily admissible under section 101(1)(d). That is very far from the case. As this court observed in Hanson . . ., there must in each case be an examination of whether the evidence really does tend to establish the relevant propensity. There will have to be sufficient similarity to make it more likely that each allegation is true. The likelihood or unlikelihood of innocent coincidence will, we are sure, continue to be a relevant and sometimes critical test. We do not, however, attempt here, any more than did this court in Hanson, to foresee the myriad of possible situations which may arise. By way of example we mention, as the court did in Hanson, that it may well be that one kind of assault will fail to be capable of establishing a propensity to commit a different kind of assault.

Author: MH

August 2007

F12.20 Multiple Charges and Accusations: Risk of Collusion between Witnesses

Where two or more complainants (or complainants and supporting witnesses) make similar accusations against a defendant, an issue may arise as to whether the similarity is derived from collusion between them or perhaps from the fact that one is making a 'copycat' allegation inspired by what the other has said. A third possibility, especially if they have discussed the events (albeit innocently) together, is that there may be 'innocent contamination', i.e. they may be consciously or unconsciously influenced in their evidence through hearing of complaints made by others. Such risks may be negligible where (as in Chopra [2006] EWCA Crim 2133) the complainants have had little if any opportunity to meet or communicate, although even then they may have been told about other incidents. The risk will be much greater where they are friends, siblings (as in H(A) [1995] AC 596) or attend the same school.

Lamb [2007] EWCA Crim 1766 is an example of strikingly similar allegations made by girls who attended at the same school. The complaint in each case was that D, a schoolteacher, behaved sexually towards them (in breach of trust) at a leavers' ball. AB made a complaint concerning the 2004 leavers' ball and CD made a similar complaint concerning the 2005 ball. Although the complainants did at one point discuss their experiences (and one persuade the other to make a supporting complaint) there was no real suggestion of deliberate conspiracy or collusion. The defence did however submit that there was a risk of 'innocent contamination', and the central argument on appeal was that the trial judge failed properly to direct the jury as to that issue. Instead, he dealt at length with collusion, which was not appropriate on the facts. In the judgment of the Court of Appeal:

not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants' evidence
On that basis, D's convictions were quashed. There is no discussion of Campbell [2007] EWCA Crim 1472 but clearly the court's view was that the jury's verdict could not be considered safe in the absence of proper judicial guidance on the contamination issue.

Author: MH

May 2007

F12.22 Similar fact Evidence and Acquittals

Z [2001] 2 AC 483 was considered in Boulton [2007] EWCA Crim 942. See F11.6.

Author: MH

January 2007

F12.24 Evidence going to Important Issue of Credibility between Defendant and Prosecution

Following Hanson [2005] EWCA Crim 824, it appears that a defendant's previous convictions will be considered relevant to that defendant'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. This principle was applied in Lamb [2006] EWCA Crim 3347, in which the Court of Appeal reiterated that even previous convictions for dishonesty may not necessarily be considered evidence of a propensity for untruthfulness.

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

January 2007

F12.26 Evidence of Misconduct Adduced by a Co-accused

In Stephenson [2006] EWCA Crim 2325 the Court of Appeal opined (obiter) that evidence of a defendant's previous convictions that would not be considered to demonstrate any 'propensity for untruthfulness' for the purposes of the Criminal Justice Act 2003, ss. 101(1)(d) and 103(1)(b) (evidence going to important issue of credibility between defendant and prosecution) might nevertheless be considered sufficiently relevant to an important issue of credibility arising between him and a co-defendant under s. 101(1)(e). Distinguishing Hanson [2005] EWCA Crim 824, in the context of the Criminal Justice Act 2003, s. 100, Hughes LJ said:

It does not follow [from Hanson] that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non defendant under [the CJA 2003] section 100, or for that matter of a co accused where the application is made by him under section 101(1)(e) . . . The same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him. [emphasis added].

Author: MH

January 2007

F12.33 Attack on Another Person's Character

The Criminal Justice Act 2003, ss. 101(1)(g) and 106(1)(c), were considered by the Court of Appeal in Nelson [2006] All ER (D) 290 (Dec).

N was charged with assault and affray. When interviewed by the police in connection with the incident in question, he suggested that his neighbour, who may have observed the incident but did not give evidence at trial, was a user of Class A drugs and had colluded with the complainant to fabricate the allegations against him. N did not persist in those allegations at trial, and the defence opposed any mention being made of them, on the ground that they were now irrelevant to the issues in the case. The prosecution, however, successfully applied for evidence of N's previous convictions for drug offences to be admitted, pursuant to s. 101(1)(g), on the ground that N had when interviewed made an attack on another person's character. N was convicted of affray. His appeal was dismissed, because imputations made by N against the complainant were sufficient to justify the revelation of N's criminal record, but the Court of Appeal did not consider that the attack on the neighbour could in itself have justified such a revelation.

The court's view was that evidence of a defendant's bad character ought not ordinarily to be admitted when the only basis for it is an attack on the character of a person who is neither a witness nor an alleged victim. The fairness of the proceedings would normally be damaged by the admission of bad character evidence in such circumstances. Furthermore, it was improper for the prosecution to adduce evidence (to which the defence objected) of otherwise-irrelevant comments made by N in interview (but not repeated by him at the trial) merely for the purpose of satisfying s. 101(1)(g). A trial judge should invoke his powers under the Police and Criminal Evidence Act 1984, s. 78, in order to prevent such abuses.

Author: MH

March 2007

F13.7 Where One Accused is of Good Character but Another is Not

The brief report of Purdy [2007] EWCA Crim 295 in the All England Reporter at [2007] All ER (D) 17 (Feb) appears to contradict the principle (established in Vye [1993] 1 WLR 471) that an accused who is of bad character cannot complain of any prejudice he may suffer through revelations of a co-accused's good character. The full transcript of the judgment, however, provides an explanation of sorts.

The trial judge in Purdy agreed to the admission of evidence concerning the appellant's previous convictions, but then inadvertently attributed them to the co-accused, W. When this error was pointed out, the judge hastily corrected himself, saying that W had no such convictions. This was held to have been a much worse (and an irremediable) mistake, because the reference to W as being of good character gave him an unfair advantage and made it more likely that the jury would convict the man with the bad character, namely the appellant.

What is not stated in this report (but is apparent from the full judgment at [13]) is that W did indeed have previous convictions. They were not however convictions that the prosecution had sought to have admitted in evidence. To that extent, the appellant may indeed have been prejudiced, although this was not a case in which cut-throat defences had been run, or in which the innocence of one would point to the guilt of the other; and whereas W may have benefited from the error, the evidence against the appellant had been properly given, so it is by no means obvious that the error did him any great injustice.

Author: MH

January 2007

F14.6 Threshold Conditions for Admissibility

In Hanson [2005] EWCA Crim 824, it was held that a defendant's previous convictions might be considered relevant to his credibility under the Criminal Justice Act 2003, ss. 101(1)(d) and 103(1)(b) (evidence going to important issue of credibility between defendant and prosecution) 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 showed a 'propensity for untruthfulness', e.g., by the making of false representations.

The brief report of S [2006] All ER (D) 120 (Aug) in the All England Reporter or Digest is misleading, insofar as it suggests that a similar principle applies to the convictions or bad character of a prosecution witness. The full report of that case (sub nom Stephenson [2006] EWCA Crim 2325) shows that, whereas the trial judge had indeed assumed the same principle applied, the Court of Appeal disagreed. Hughes LJ said:

It does not follow . . . that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non defendant under [the CJA 2003] section 100, or for that matter of a co accused where the application is made by him under section 101(1)(e). It is, as we then explained, wholly rational that the same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (though he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson to the situation which was before him.

Author: MH

June 2007

F14.6 Threshold Conditions for Admissibility

Note in this context the decision of the Court of Appeal in Duckfield [2007] EWCA Crim 4, which is considered at F7.13 above.

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

January 2007

F15.11 Implied Statements as Hearsay

The Criminal Justice Act 2003, s. 115(3) provides that the rules in that Act governing the admissibility of hearsay evidence apply if (and only if) the purpose (or one of the purposes) of the person making the statement appears to the court to have been to cause another person to believe the matter, or to cause another person to act or a machine to operate on the basis that the matter is as stated.

This was intended to, and clearly does, rid us of the troublesome 'implied assertion' doctrine as seen in cases such as Wright v Doe d. Tatham (1837) 7 Ad & El 313 and Kearley [1992] 2 All ER 345: X does not 'impliedly state that he is cold' just because Y notices that X has put on an extra pullover; and Y does not assert that Z is a drug dealer just because he is heard to ask Z (or someone he believes to be Z) for his 'usual supply' of drugs. See for example Isechei [2006] EWCA Crim 1815.

But this also means that a plain and explicit statement found in a diary, when relied upon in court, can be classed as hearsay (and subject to the rules governing the admission or exclusion of hearsay) only if the diarist intended someone else to read and believe the passage in question. In N(K) [2006] EWCA Crim 3309, McCombe J said (at [16] and [21]):

To our mind it would be a very strange state of the law if a defendant could introduce a diary such as this on the basis that it is an inconsistent statement, but yet it remained outside the provisions made by Chapter 2 of the Act for the regulation of the admission of statements other than those made in court. Nevertheless, if that is the conclusion which the statute compels, we must give effect to it. In our judgement the fallacy in this argument is the underlying assumption that if the diary is not admissible hearsay, it cannot be admissible at all. The rule against hearsay is, was and always has been an exclusionary rule. That is to say, it operates to render inadmissible what would otherwise be relevant and thus admissible. The rationale has always been that assertions out of court may be false either because they are untruthful or because innocently inaccurate, and, unlike sworn testimony, those possibilities cannot be rectified by being tested in examination and cross-examination. . .

. . .If, as the appellant contends, the diary was never intended to be read by anyone, it was not hearsay because it did not fall within section 115. But that does not mean it is not admissible. On the contrary, if relevant it is admissible. It is real or direct evidence outside the hearsay rule. The statutory restrictions upon the admissibility of hearsay have no occasion to apply to an action by the complainant which never had as its purpose, principal or supplementary, that any other person should believe or act upon it. It is simply a fact from which the jury is entitled, but not bound, to infer that L's uncle had had intercourse with her. It is a fact from which that may, but not necessarily will, be inferred, in exactly the same way as if she had been observed by other people kissing him, for example, passionately or making a booking of a hotel room for an afternoon in his name.

The conclusion that the Criminal Justice Act 2003 does not restrict the admissibility of such evidence seems inescapable. But can such a diary entry really become 'real or direct evidence' of facts stated inside, merely because the maker did not expect anyone else to read it? If (for the sake of argument) Samuel Pepys kept his famous diary solely for his own reference, does this mean it would now be seen as direct, first-hand evidence of the Great Plague and Fire of London? Does its essential character change according to the purpose for which it was kept?

Author: MH

January 2007

F16.8 Unavailable Witness: Fear

The suggestion in H and others [2001] Crim LR 815, that a court should test oral testimony of fear through video link or recording was not followed by the Court of Appeal in Davies [2006] EWCA Crim 2643. The judge in this case had allowed evidence of three witnesses (alleged victims of the appellant's violence) to be read, pursuant to the Criminal Justice Act 2003, s. 116, because of their fear of the appellant. He acted on the basis of written statements by the witnesses to that effect.

The Court of Appeal rejected argument that more should have been done to ascertain the extent and basis of the fear. Moses LJ said (at [14] to [15]):

In our judgment, the judge was perfectly entitled to reach a conclusion as to the genuineness of the witnesses' fears on the basis of the evidence to which we have referred. It must always be recalled that fear is to be widely construed (see the CJA 2003, section 116(3)) and that it was the purpose of this part of the 2003 Act to alter that which had previously been the law under section 23 of the Criminal Justice Act 1988. The law previously referred to, particularly in H, is no longer that which should guide the courts under the new regime. Indeed, courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that section 116 was designed to avoid.

Of course, judges must be astute not to skew a fair trial by a too ready acceptance of assertions of fear since it is all too easy for witnesses to avoid the inconvenience and anxiety of a trial by saying they do not want to come. But having said that, in the instant case there was ample evidence to justify the course that the judge took. In those circumstances, there is no basis for the suggestion that he was wrong to do so. Normally a judge will have a much better feel of the truth or otherwise of the assertions of fear than this court could ever do, but we accept that the judge made his ruling at the outset and in those circumstances based it purely upon the written assertions of the witnesses. Had we thought he was plainly wrong, then there would have been merit in this appeal, but, on the contrary, we take the view that he was right.

Author: MH

June 2007

F16.14 Business and other Documents: Unavailability of Maker of Statement Prepared for Purposes of Criminal Investigation

Hanson [2005] 1 WLR 3169 was considered and Humprhis [2005] EWCA Crim 2030 was distinguished in Wellington v DPP [2007] EWHC 1061 (Admin). This case provides further guidance as to the use of hearsay evidence in the form of printouts from the Police National Computer (PNC).

D charged with driving offences and with obstructing a constable in the execution of his duty. It was alleged that he was the driver of a car that had been stopped by officers. This driver had provided a false name ('Robert Vernon') and address, and then drove off while the officers were checking the details on the PNC. D was later identified and arrested by one of the officers concerned. As part of the case against him, the prosecution adduced a printout from the PNC which, in addition to his personal details, contained a list of aliases, including the name 'Robert Vernon'. He was convicted and appealed by way of case stated, contending (inter alia) that the requirements of the CJA 2003, s. 117(2)(b) and (c), had not been met and that the police officer who had originally entered the information on aliases into the PNC might well have recollection of that data, contrary to the requirements of s. 117(5)(b).

The appeal was dismissed. Jackson J said (at [31] to [32]):

Bearing in mind the Court of Appeal's reasoning and guidance in Hanson and Humphris, let me now return to the PNC print-out in the present case. It should be noted first of all that this is a standard print-out. It does not contain any additional details of the kind which featured in Humphris. The print-out contains Mr Wellington's name, address, date of birth and so forth. It then has the entry concerning aliases . . . In my judgment, the inescapable inference from this document is that the police officers who supplied the information 'had or may reasonably be supposed to have had personal knowledge of' the fact that Mr Wellington was using the alias Robert Vernon. There is no analogy between the PNC details which were wrongly admitted in Humphris and the PNC entry about aliases in the present case. I therefore reject the submission that the requirements of s. 117(2)(b) were not complied with. For essentially the same reasons, I reject the suggestion that the requirements of s. 117(2)(c) have not been complied with.

I turn next to s. 117(5)(b). [Counsel] urges that the relevant police officer could well have a recollection of the aliases, especially if he had only recently input such data into the system. In my judgment, this is the wrong approach to the sub-section. If pressed to its logical conclusion, this argument could lead to the exclusion of many relevant and uncontroversial details commonly found in a PNC print-out. The crucial fact is that alias names are not unusual. Police officers keep a record of alias names given by offenders as a matter of routine. Although it is possible that police officers will have a recollection of alias names given, these are not the kind of details of which police officers could reasonably be expected to retain a recollection. I am satisfied that in this case the requirements of section 117(5)(b) were met.

Author: MH

August 2007

F16.15 Discretionary Exclusion of Statements

Sellick [2005] 1 WLR 3257, Al-Khawaja [2006] 1 All ER 543; Xhabri [2006] 1 All ER 776, KM [2003] EWCA Crim 357 and Grant v The Queen [2007] 1 AC 1 were applied in Cole [2007] EWCA Crim 1924. The Court of Appeal rejected arguments that D's right to a fair trial under the ECHR, Article 6 is necessarily infringed where the prosecution are permitted to rely on hearsay statements from dead, frightened or otherwise absent witnesses, even where such evidence is absolutely critical to the prosecution case. Lord Phillips CJ referred to Luca v Italy (2003) 36 EHHR 807 and continued:

14. Is hearsay evidence of a witness who cannot be cross-examined precluded when it is the sole, or the decisive, evidence against a defendant? The wording of the Strasbourg Court in the passage from Luca that we have cited above might suggest so. But Mr Bryan accepted that there was a line of domestic authority that establishes, so far as this court is concerned, that this is not the case. . .

20. Once one moves away, as both the Strasbourg and our domestic jurisprudence clearly have, from the proposition that there is an absolute rule that evidence of a statement cannot be adduced in evidence unless the defendant has an opportunity to examine the maker, it seems to us that there can be only one governing criterion. Is the admission of the evidence compatible with a fair trial? It is that question alone with which Article 6 is concerned.

21. There are many reasons why it may be impossible to call a witness. Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted. Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will be depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act.
To similar effect is Kelly [2007] EWCA Crim 1715.

Author: MH

October 2006

F16.17 Hearsay Admissible in the Interests of Justice

The Criminal Justice Act 2003, s. 114(1)(d) was considered by the Court of Appeal in S [2006] EWCA Crim 2272. The appellant, aged 16, was arrested on suspicion of a robbery, which had allegedly been committed by a gang of youths of which he was a member. On legal advice gave a no comment interview. At trial, his defence was that he had not been involved in the robbery. He was cross examined by the prosecution as to why he had not said this to the police, but he was not accused of subsequently inventing his defence.

His counsel sought to adduce evidence of a statement which the appellant had made to his solicitor prior to his police interview, but the trial judge declined to admit it under s. 114(1)(d), ruling that it would not be in the interest of justice to admit it. The judge did however direct the jury not to draw adverse inferences from the appellant's silence at interview.

Dismissing the appellant's appeal against his conviction for robbery, the Court of Appeal focused, as did the trial judge, on the fact that the excluded statement (which was not wholly exculpatory or consistent with the defence case) would have done little to assist the appellant and might in some ways have damaged his actual defence.

The case was distinguishable from Oyesiku (1971) 56 Cr App R 240 (see F6.16) in which a statement made to a defence solicitor by a key witness was held to be admissible to rebut the suggestion that the defence case was a subsequent fabrication.

Author: MH

February 2007

F16.17 Hearsay Admissible in the Interests of Justice

In Finch [2007] EWCA Crim 36, F and R were in a car that was stopped by the police. A loaded pistol was found in the car. In his police interview, R confessed to possession of a firearm and ammunition, indicating that F was not involved. This confession would ordinarily have been admissible on F's behalf under the Police and Criminal Evidence Act 1984, s. 76A, even if the prosecution chose not to adduce it under s. 76. Unfortunately for F, R pleaded guilty to the offences, thereby ceasing to be F's co-accused. It followed that his admission to the police was now third-party hearsay, rather than a confession by an accused within the meaning of s. 76 or s. 76A; and although R's guilty plea must be considered proof of his own guilt, it was in no sense proof of F's innocence, because they might easily have been accomplices, and this indeed was the prosecution case all along.

F's counsel was left with two possible options: she could call R as a compellable defence witness and, should he prove obstructive, seek leave to cross-examine him as a hostile witness (in which case R's confession might then be put to him as a previous inconsistent statement) or she could decline to call him and seek to have that statement admitted under the Criminal Justice Act 2003, s. 114(1)(d).

Given indications that R would not be a helpful witness, counsel elected not to call him, but was then unable to persuade either the trial judge or the Court of Appeal that this was an appropriate case for the admission of hearsay under s. 114(1)(d).

The court opined that it would rarely be in the interest of justice to admit a reluctant witnesses' evidence, where this had been untested before the jury.

Author: MH

March 2007

F16.17 Hearsay Admissible in the Interests of Justice

In M [2007] EWCA Crim 219, the Court of Appeal has for the first time considered the possible application of the Criminal Justice Act 2003, s. 114(1)(d), to evidence of statements (other than confessions) made by defendants prior to the trial. Some of the court's observations may also be relevant to confessions that implicate or exculpate co-defendants, and to the interpretation of s. 114(1)(d) and 114(2) generally.

Finch [2007] EWCA Crim 36, which was examined in last month's update, was concerned with the confession of an alleged accomplice who had pleaded guilty and who accordingly was no longer a defendant. Both cases contain references to the Police and Criminal Evidence Act 1984, s. 76A, as do earlier judgments in Williams [2006] EWCA Crim 3300 and Hayter [2005] UKHL 6; but in none of those cases was s. 76A strictly applicable. Indeed, it was described in Williams as 'something of a distraction'. We are still waiting, therefore, for the first reported case directly concerning s. 76A.

The facts of M cannot be published for the time being, because a re-trial of the defendants has been ordered; but permission has been given for the relevant points of law to be reported. The case concerned a statement made by one of a group of defendants whilst on remand in connection with a serious offence. That statement was not a confession (and therefore was not admissible under s. 76 or s. 76A) but was merely an accusation made against one of the other defendants.

The trial judge, having been referred to the Criminal Justice Act 2003, ss. 114(1)(d) and 114(2), ruled that nothing in those provisions was intended by Parliament to abrogate the well known common law rule that an out of court statement by one defendant is inadmissible as evidence against any co-defendant, unless made in the co-defendant's hearing and expressly or impliedly concurred in by that co-defendant.

The judge's ruling was understandable. In Hayter, the House of Lords had only recently concluded that a confession by one defendant could not be used directly as evidence against another, and did not at any point suggest that the 2003 Act would (if in force) have made any difference on that score. As Lord Rodger pointed out in Hayter (albeit in the context of a dissenting opinion), there is no indication that Parliament intended the 2003 Act to undermine or alter the law governing confessions, save in those limited circumstances to which the new s. 76A applies. If D1's confession cannot be used against D2, it would seem remarkable if D1's pre-trial accusation of D2 could be treated any more generously.

More recently, the Court of Appeal in Williams had criticised the trial judge's summing up on the specific basis that:

He did not warn the jury that what one defendant had said in interview could not be used against another defendant. He did not explain why that was so in the customary fashion, namely because it was hearsay evidence. The co-defendant had not heard what the one defendant had said about him and had not had the opportunity to dispute it. . . . Where there are three defendants, each of whom had said things in interview about his own role and also about the roles of the others, it was, in our view, vital that the judge should make it clear that anything accusatory that one defendant said about another defendant was not evidence against that other defendant.

In M, however, the Court of Appeal held that the CJA 2003 had changed the ground rules. Hughes LJ said (at [20] to [21]):

The conventional direction . . . that has historically been given to juries [is] that what defendant A says to the police is evidence only when considering his case and is to be ignored when considering the case of defendants B, C or D. The reason why that has always been the direction given is that what A says to the police is hearsay so far as B, C or D are concerned. Until the passage of the Criminal Justice Act 2003 it was, almost invariably, inadmissible hearsay; hence the direction. The 2003 Act makes hearsay admissible in some circumstances. In the context of this case it makes it admissible if, but only if, the judge concludes that it is in the interests of justice that it should be admitted. It follows without question that if it is admitted there can be no possibility of what we have described as the conventional direction any longer being given. If hearsay evidence is admitted in the interests of justice the jury is by law entitled to consider it, to determine its weight and to make up its mind whether it can or cannot rely upon it. It would be a plain nonsense to suggest that such hearsay evidence could be admissible, yet still the jury should be directed that it was not evidence except in the case of [the maker]. There is no doubt that if and when hearsay evidence of this kind is ruled admissible it becomes evidence in the case generally.

It follows that if the judge meant . . . that the conventional or historical rule remained in force even if evidence such as this was admitted, then his ruling is founded on a fundamental misapprehension as to the law.

One can see the logic of this argument, but any 'fundamental misapprehension' on the part of the trial judge in M was clearly shared by the Court of Appeal in Williams and perhaps also by the House of Lords in Hayter. Neither of those cases was cited in M. In the circumstances, this area of law cannot yet be regarded as settled.

Author: MH

April 2007

F16.17 Hearsay Admissible in the Interests of Justice

McEwan v DPP [2007] EWHC 740 (Admin) suggests that the courts will exercise firm control of the safety valve principle in the Criminal Justice Act 2003, s. 114(1)(d). Where (as in McEwan) the prosecution seek to invoke this safety valve in order to compensate for their own culpable failure to secure evidence to support of an application under s. 116, the courts are not likely to be sympathetic. As Gross J explained at [18]:

. . . the safety valve is there to prevent injustice. It would have to be an exceptional case for it to be relied upon, as it is sought to do here, to rescue the prosecution from the consequences of its own failures.

Author: MH

June 2007

F16.17 Hearsay Admissible in the Interests of Justice

The CJA 2003, s. 114(1)(d) was relied upon to admit hearsay evidence on behalf of the prosecution in Meade [2007] EWCA Crim 1116.

Author: MH

June 2007

F16.17 Hearsay Admissible in the Interests of Justice

Following its earlier ruling in Finch [2007] EWCA Crim 36 (see the February update) the Court of Appeal has now (in Finch [2007] All ER (D) 288 (May)) certified the following question of general public importance for possible consideration by the House of Lords:

Where two defendants, A and B, were jointly charged with an offence which it was alleged had been committed by both of them together, and A has pleaded guilty to it, do A and B remained 'charged in the same proceedings' for the purposes of s 76A of the Police and Criminal Evidence Act 1984, so that B may put in evidence the contents of A's confession to the police without calling him and notwithstanding that he would be a compellable witness?

Author: MH

August 2007

F16.17 Hearsay Admissible in the Interests of Justice

The relationship between the Criminal Justice Act 2003, s. 114(1)(d) and s. 116(2)(b) was commented on (obiter) by Hughes LJ in DPP v R [2007] EWHC 1842 (Admin). See F4.16 above.

Author: MH

July 2007

F16.48 Criminal Justice Act 2003: Multiple Hearsay

Maher v DPP [2006] EWHC 1271 (Admin) (noted in the June 2006 update) and the Criminal Justice Act 2003, ss. 114(1)(d) and 121(1)(c), were considered by the Court of Appeal in Walker [2007] EWCA Crim 1698.

This case concerned testimony given by a witness (B) as to a potentially incriminating statement made by one of the defendants (C) in which C had mentioned something said to him by the appellant (W). B testified that C handed him a gun (allegedly the weapon used to commit a murder a few minutes earlier) and said "Your cousin (W) said hold this and he'll collect it in the morning."

There was no dispute that C's account of what W had said to him was hearsay within the meaning of the CJA 2003, s. 115. W's statement to C was not made in oral evidence and W's purpose, if he made the statement, was to cause C to act on the basis of the information provided. Similarly, C's purpose in telling B what W had said to him was to cause B to take the bag and temporarily look after it for him. It was accordingly a case of double hearsay within the meaning of s. 121.

Admissibility of B's 'double hearsay' evidence depended on the CJA 2003, s. 114 (in particular, s. 114(1)(d) and (2)) and s. 121. The statements in question must be admissible both independently and cumulatively. Section 121 does not provide an alternative to the establishment of admissibility under ss. 114, 116, etc, but instead provides an additional test to be satisfied. The trial judge, however, "jumped straight to s. 121". Moreover, although he considered B's reliability:

he never addressed the issues of the reliability of C and W as makers of the statements, the reliability of the evidence of the making of the statement by W to C and the reliability of the statement themselves.

The Court of Appeal did not think that these errors undermined the safety of the conviction. Had the judge asked himself the right questions he would have found that the evidence (whether or not it was also admissible as confession evidence) satisfied the test laid down in s. 114(1)(d); and although s. 121 "imposes a higher threshold . . . than s. 114", a judge, having concluded that the statements were admissible under s. 114 (1)(d) (read in conjunction with s. 114(2)(e) and (f)) would not be likely to exclude them as unreliable for the purposes of s. 121.

Author: MH

August 2007

F17.1 Definition

As to the use of a (vacated) guilty plea as a confession, see also Johnson [2007] EWCA Crim 1651 (considered below at F17.12).

Author: MH

August 2007

F17.12 Confession Tendered by a Co-accused

Johnson [2007] EWCA Crim 1651 appears to be the first reported case in which the Police and Criminal Evidence Act 1984, s. 76A has not merely been considered but actually found to be applicable on the facts. In this case D had at one stage tendered a guilty plea to a drug importation charge under the Customs & Excise Management Act 1978, s. 170(2)(b). The basis of this plea was stated in writing to be that "his role was only that of a delivery man. He was asked to pick up and deliver a package which he agreed to. He knew what he was doing was wrong. However, he did not know the gravity and seriousness of what he was getting involved in".

D was subsequently allowed to vacate this plea, but his co-defendant (who was running a cut-throat defence) then applied for the basis of D's plea to be admitted in evidence under s. 76A, and it was held that the judge had no discretion to refuse this. Pill LJ said (at [22]):

We understand the frustration of a defendant who is permitted to vacate a guilty plea but not then permitted to enjoy the fruits of vacation by way of a trial unencumbered by the earlier plea. On the evidence, however, the issue at this trial was essentially between the two defendants and the decision in Myers [1997] 4 All ER 314 and s. 76A . . . are designed to ensure a fair trial in that situation.

Author: MH

January 2007

F18.19 The Turnbull Guidelines

Where a judge decides that the identification evidence in a given case is of such poor quality that he would not have left the case to the jury in the absence of supporting evidence, there is no obligation on him to warn the jury that they should not convict on the basis of the evidence of identification alone, should they reject the supporting evidence. There might however be some cases where, in the light of the evidence that has unfolded, a direction of that kind might be appropriate, but it is not required as a general rule: see Ley [2006] EWCA Crim 3063.

Author: MH

December 2006

F18.28 Use of Visual Evidence at Trial

The third of Rose LJ's examples in A-G's Ref (No 2 of 2002) [2003] 1 Cr App R 321 was considered in Abnett [2006] All ER (D) 244 (Nov). A police officer, who had spent some time interviewing the appellant and repeatedly viewing CCTV footage of a robbery, together with still images from that film, was permitted to state that he was '100% sure' that one of the robbers pictured was the appellant. He had no specialist training in facial mapping or any other such technique, and (with respect) it is not obvious how or why his repeated viewing of the images would have equipped him to make a significantly more reliable identification than the jury, who had access to the same footage and images. Contrast Clare [1995] 2 Cr App R 333, in which the police officer had spent hours analysing footage of crowd violence and was able (inter alia) to explain to the jury how the incident in question had developed.

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

April 2007

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

Boyle [2006] EWCA Crim 2101, which was noted in the September 2006 update, has been considered and approved in Lowe [2007] EWCA Crim 833.

Author: MH

May 2007

F19.6 Out of Court Silence: Fact Relied Upon

Webber [2004] 1 All ER 770 was followed in Esimu [2007] All ER (D) 272 (Apr), in which it was held that a jury were properly invited to draw inferences under the Criminal Justice and Public Order Act 1994, s. 34, when D failed to offer any explanation to the police as to how his fingerprints came to be found on the false number plates attached to a stolen car, but advanced an explanation at trial, according to which he might have had cause to remove the plates whilst working at a car wash and valeting business.

The Court of Appeal held that the car valeting explanation, although only a theory, was based on alleged facts and that it was open to a jury to draw inferences from D's failure to mention those facts when interviewed under caution. Any alleged fact which was in issue and was put forward as part of the defence case could potentially fall within the scope of s. 34: if the defendant advanced at trial any fact or explanation or account which, if it were true, he could reasonably have been expected to advance earlier, s. 34 was potentially applicable.

Esimu can be contrasted with Nickolson [1999] Crim LR 61 in which D was convicted of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. When he gave evidence at the trial D proffered an explanation as to how the semen might have got there other than through sexual abuse (namely that she might have sat in her nightdress on a toilet seat shortly after D had masturbated there) but since he had not mentioned this explanation when questioned the trial judge gave the jury a s. 34 direction. The Court of Appeal held this to be wrong. When he was being interviewed, neither D nor the police were even aware of the staining, and he could not reasonably have been expected to explain a fact of which he was totally unaware.

Furthermore, D's in-court explanation was no more than a theory, a possibility or speculation. He had told the police in interview that he had masturbated in the bathroom after leaving the complainant's bedroom, so it could not be said that he had failed to mention the facts on which the theory was based.

Author: MH

August 2007

F19.6 Out-of-Court Silence under the 1994 Act: Failure to Reveal Facts Later Relied Upon in Court

T v DPP [2007] EWHC 1793 (Admin) emphasises once again that a 'no comment' interview is not in itself enough to trigger the drawing of an inference under Criminal Justice and Public Order Act 1994, s. 34. It is essential to identify some fact that D failed to mention when interviewed but he could reasonably have been expected to mention and which he then relies upon in court. If a given fact was properly dealt with in a prepared statement, prior to the no comment interview, it cannot be the basis of a s. 34 inference.

Hughes LJ added that, where a solicitor advises a young person, and is also to conduct the defence, he must consider whether he might become a witness of fact. Whether an issue under s. 34 might arise cannot always be foreseen until the defence case is made. A solicitor must consider whether such an issue is likely to arise and whether, if it does, he is likely to become a witness of fact. He cannot rely on the pre-trial review form to make this decision.

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

August 2007

F19.8 Out-of-Court Silence under the 1994 Act: Waiver of Privilege

Bowden [1999] 1 WLR 823 and Loizou [2006] EWCA Crim 1719 were considered in Hall-Chung [2007] All ER (D) 429 (Jul). D was charged with armed robbery and gave a no comment interview when first questioned by police officers. D's solicitor indicated that he had advised him to make no comment because inadequate disclosure had been made and that he had insufficient information to enable him to advise him. This was subsequently seized upon by the prosecution as a waiver of privilege, so that D could be cross-examined as to whether there were other reasons for the advice being given, such as his lack of any real defence.

Dismissing D's appeal against his conviction, the court held that it did not matter whether the prosecution or defence had first adduced evidence of the waiver of legal professional privilege. Where a solicitor stated in the presence of his client that the client would not be answering questions in interview, and gave reasons or grounds for why he had given that advice, privilege was waived by the defendant through the mouth of his agent acting in the scope of his authority.

On the other hand, judges must exercise independent judgment in each such case as to whether it is fair to permit the prosecution to exploit any such waiver of privilege. Judges should not assume that the prosecution are entitled to take advantage of such waivers in every case.

Author: MH

July 2007

F19.14 Failure to Testify

The importance attached to the trial judge's duty to provide an appropriate direction to the jury in cases involving a failure to testify is illustrated by Paton [2007] EWCA Crim 1572. D was charged with kidnapping, false imprisonment and possession of an imitation firearm with intent to commit an indictable offence. The case against him was 'unarguably strong' but circumstantial, and depended in particular on the finding of incriminating items in his car.

At the trial, the Recorder asked D's counsel, in front of the jury, whether he had warned D that the jury might draw such inferences as were proper from a failure to give evidence. Counsel replied that he had, but although D then failed to give evidence, and although prosecuting counsel made (in his own words) 'quite a meal' of that failure in his closing speech, the recorder's only reference to it was when summing up was this:

As you know, the defendant was interviewed on that date and, indeed, subsequently on three other occasions. You have got the transcripts of the evidence that he gave. I am going to remind you about his evidence tomorrow morning because it is right that, because the defendant himself has not given evidence, the only account you have from him to explain his whereabouts and what he was doing and how he came to be in possession of the items that were found when his car was searched, that evidence is contained within the interview notes.

When the jury had retired, the Recorder told prosecuting counsel that he had made a conscious decision not to say more. He may have thought that this was a kindness, in that the standard direction would have been more damaging to D's case, but the Court of Appeal disagreed and ordered a retrial. Toulson LJ said (at [32]):

If the Recorder had made a positive decision that this was not an appropriate case in which adverse inferences could or should be drawn, it was his duty so to direct the jury. If he took the view that, on the contrary, the jury should be entitled in accordance with the terms of the statute to draw adverse inferences, then it was incumbent on him to give the appropriate direction. What he could not properly do was simply to leave the matter in the air. That left it for the jury to make up their own minds what inferences they could draw without any of the guidance which comes with the standard form of direction. This was, we stress, not the fault of prosecution counsel, who drew the Recorder's attention to it, but it was a serious omission.

Author: MH

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