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Blackstone's Criminal Practice 2009

Part F

Updates to Part F: Evidence

F1 General Principles of Evidence

F1.2 Formal Admissions

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The procedure for evidence by admission is now set out in r. 37.6.

F1.7 Relevance

Hasan [2008] EWCA Crim 2909 emphasises the principle that a defendant ought not to be prevented from adducing relevant and otherwise admissible evidence merely because it may cause difficulties for his co-defendants. In Hasan the appellant, who was alleged to have taken part in a gang-related murder, claimed that he was not a member of the gang in question (although he was at the scene) and in support of this contention he sought to adduce evidence to show that a series of phone calls had been made between gang members prior to the killing but these had not involved or included the appellant. His co-defendants objected to this and the trial judge excluded the evidence on the basis that its admission would "run the real risk of opening a Pandora's box to which there is no effective finite end." He did however permit counsel to establish from a police officer that there was no information disclosing any association between the appellant and the co-defendants, other than one who was a friend.

Quashing the appellant's conviction, the Court of Appeal ruled:

In our view [the excluded evidence] was clearly relevant. If the admission of the evidence ran the risk of opening a Pandora's box, then it did not thereby become inadmissible. If there was such a risk then the solution lay in the prosecution making an admission, e.g. an admission to the effect that the appellant was not a member of the North London Somalis. What could not happen was that the appellant was denied the right to call important evidence in his favour.

F2 The Discretion to Exclude Evidence

F2.11 Evidence Obtained by Torture

In Gäfgen v Germany (2009) 48 EHRR 253, it was held that, although incriminating real evidence recovered as a direct result of acts of violence, at least in the case of torture in breach of the ECHR, Article 3, should never be relied on as proof of guilt, irrespective of its probative value, evidence secured as an indirect result of statements made ('fruits of the poisoned tree') and obtained by reason of inhuman treatment in breach of Article 3 may be admissible, notwithstanding a strong presumption that the use of such derivative evidence renders the trial unfair, where the evidence is only accessory in securing a conviction and defence rights are not compromised as a result of its admission.

F2.26 Prosecutions Founded on Entrapment

As to the need for 'reasonable grounds for suspicion' (Loosely, principle (e) (ii)), see also Ramanauskas v Lithuania [2008] Crim LR 639. R was a prosecutor. Acting on nothing more than rumours about R's openness to bribes, AZ, an anti-corruption officer, asked him to secure a person's acquittal. R refused a number of times but later agreed. The Ministry of Interior then authorised AZ to offer a bribe without risk of prosecution. The bribe was offered again and R accepted it. Finding a violation of the ECHR, Article 6, the European Court of Human Rights held that this was a case of entrapment, with no evidence that R would have committed the offence in the absence of the repeated offers. The Government could not be excused from responsibility for its officers by arguing that AZ had initially acted in a private capacity, because that would allow the relevant principles to be circumvented by 'privatisation' of incitement.

F2.30 Significant and Substantial Breaches

Ibrahim [2008] 2 Cr App R 311 (see main work at F17.32) furnishes guidance on the application of the PACE 1984, s. 78 to 'safety interviews' carried out under the Terrorism Act 2000, sch. 8 or the fruits of such interviews. It was held that much will turn on the nature of the warning or caution (if any) given, so that if, for example, a suspect is assured in terms that any information provided by him will not be used against him, that will provide a powerful argument against the admission of incriminating evidence obtained in consequence. It was further held that much may also turn on whether the interviews produce evidence directly relevant to the charge which led to detention or whether the first connection that the prosecution may establish against him with any offence arises directly from his full cooperation during the course of the safety interview. These will be fact-specific decisions to be made in the overall circumstances of each case. See also the main work at B10.223.

F3 Burden and Standard of Proof

F3.9 Implied Statutory Exceptions

Hunt [1987] AC 352 and the case law arising from the ECHR, Article 6 were considered in the context of the Hunting Act 2004 in DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin). See B20.7 above.

F3.13 Incidence of the Legal Burden: the Human Rights Act 1998

Lambert [2002] 2 AC 545, Johnstone [2003] 1 WLR 1736, Sheldrake v DPP [2005] 1 AC 264 and Davies v Health and Safety Executive (2002) The Times, 27 December 2002 were considered by the House of Lords in Chargot Ltd [2008] UKHL 73, which like Davies involved prosecutions under the Health and Safety Act 1974. Under s. 40 of this Act, once the prosecution has proved that there was an a real risk of injury arising from conditions in the workplace, the burden is on the employers to prove that that they had done all that was reasonably practicable to protect against that risk. One of the questions that arose for decision was whether the imposition of this burden was compatible with the ECHR, Article 6. Lord Hope (with whom the other Lords agreed) said:

Section 40 imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility.

F3.27 Regulatory Offences

Lambert [2002] 2 AC 545, Johnstone [2003] 1 WLR 1736, Sheldrake v DPP [2005] 1 AC 264 and Davies v Health and Safety Executive (2002) The Times, 27 December 2002 were considered by the House of Lords in Chargot Ltd [2008] UKHL 73. See F3.13 above.

F4 Competence and Compellability of Witnesses

F4.13 Spouse or Civil Partner of the Accused

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the PACE 1984, s. 80(3)(c) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

F4.18 Children and Persons of Unsound Mind

McPherson [2005] EWCA Crim 3606 and Powell [2006] 1 Cr App R 468 were applied in Malicki [2009] EWCA Crim 365,, in which the court concluded per curiam:

What has happened in this case underlines the importance of what was said in Powell and the crucial need for all concerned to pay full attention to it. We have concentrated on the effect that the delay had on the ability of the appellant to defend himself. But it is of equal concern that the young complainant had to wait so long before the matter came to trial, then had to come to court and be cross-examined, only for the conviction to be quashed because of the delay. As was said in Powell, cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned - prosecution and defence - to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure), and it is the responsibility of the court to ensure that such expedition is provided.

F6 Examination-in-Chief

F6.13 Refreshing Memory: Production of Documents for Inspection and Cross Examination

Bass [1953] 1 QB 681 and Skinner (1994) 99 Cr App R 212 were considered in R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin) where one of the issues was whether the Independent Police Complaints Commission (IPCC) should have issued directions to prevent any conferring or collaboration between police officers who had been involved in a fatal shooting incident, particularly in connection with production of the officers' initial accounts. It was submitted that this failure constituted a violation of the ECHR, Article 2, in respect of the right to an adequate investigation into the death of any person at the hands of 'state agents'. Underhill J noted the real dangers of both collusion and innocent contamination inherent in such collaboration, but continued:

It does not follow from the acknowledgment of the risks inherent in the practice of permitting officers to confer, and in particular to collaborate in writing up their notes, that there should be a general prohibition on the practice; and in any event the latter practice has, as I have shown, the endorsement of the Court of Appeal. A ban on 'mere' conferring not only would be difficult to enforce in practice but would in many cases have serious operational disadvantages: prompt exchange of information between officers in the immediate aftermath of an incident is often essential. That objection might not apply to collaboration in the production of notes; but, as already observed, there are advantages as well as disadvantages in officers pooling their recollections, and the theoretically optimal practice of their doing so only after they have produced an uncontaminated first account may be both cumbersome in practice and of limited real value (particularly in a case where there has already been a degree of conferring in the immediate aftermath of the incident).

The ACPO's latest guidance, reminds officers to include in their notes only their own recollection of events and requires officers to state with some specificity when notes had been written up together.

There may be an argument for applying tighter restrictions to cases involving (for example) fatal shootings by officers, and in some cases failure to prevent it might undermine the fairness of a subsequent investigation, but Underhill J was not prepared to say in this case that the mere fact that there had been collaboration in the production of witness statements meant that a breach of Article 2 had been established.

F6.20 Recent Complaints

The evidential status of complaints made years after the alleged offence was considered in Gillooley [2009] All ER (D) 284 (Feb), where the complaint was one of indecent assault on a male child (B) who did not report it for several years, first mentioning it to a girlfriend and then some years later to his mother.

The judge admitted this evidence not under the CJA 2003, s. 120, but under s. 114(1)(d) of that Act. Defence counsel had not objected to this, as it formed part of the background facts as to B's delay in making the complaint (cf. Breeze [2009] EWCA Crim 255). In his summing-up, however, the judge directed the jury that B's complaint to his mother was not independent evidence in support of B's case, 'but it is evidence you are entitled to consider because it will help you to decide whether he has told the truth'. That direction was based on the Judicial Studies Board's specimen direction on recent complaints admitted under s. 120.

The Court of Appeal's view was that the direction was nevertheless appropriate in the circumstances.

F7 Cross-examination and Re-examination

F7.16 Protection of Complainants in Proceedings for Sexual Offences: Section 41(5): Evidence or a Question Relating to Evidence Adduced by the Prosecution

F [2008] EWCA Crim 2859 illustrates the kind of evidence or questioning to which the YJCEA 1999, s. 41(5) may apply. The appellant had faced a 20-count indictment alleging rape and various sexual offences against his partner's two daughters. His defence was that the allegations were spiteful inventions from girls who resented the fact that he had supplanted their natural father. The jury failed to agree on most of the charges, including the rapes, but did convict him on four counts of indecent assault against one of the girls (LB), who in her testimony had mentioned visiting her doctor as a result of pregnancy scares, saying:

The second time I remember I actually went to my doctor's surgery at the . . . Group Practice as the second time the pregnancy test came back positive and they referred me to the clinic for a termination, but I did the test again after a few weeks and I wasn't pregnant. I was not sexually active with anyone else at the time . . .

The medical notes, however, referred to her mentioning sex with her boyfriend. The defence applied for leave to cross-examine LB as to this. The judge refused the application on the basis that s. 41 precluded it. Allowing the appeal and ordering a retrial of those four counts, Lord Judge CJ said (at [22] to [23]):

Without setting out all the matters of fact in detail, the consequences of the judge's decision can be readily explained. The evidence that LB had become pregnant or had a pregnancy scare will undoubtedly have confirmed beyond question that she had indeed had sexual intercourse with someone (or that someone had had sexual intercourse with her). If her assertion had been recorded when she visited the doctor that it was the appellant who had been responsible for her pregnancy, we suspect that that assertion would have been admissible. Yet when she asserted that somebody else was, on the basis of the judge's ruling it was not admissible. The reality, however, is that the basis of her statement and on her evidence there was no other candidate for her pregnancy. The prosecution case was therefore reinforced. On her account to her doctor, the position was plainly different. In the context of this case the difference mattered very greatly.

It is true that if this evidence had been admitted and [counsel] had proceeded to cross-examine within the appropriate limits permissible to counsel, LB may have come up with all sorts of answers about why the doctor's notes recorded her account of something going wrong with the contraceptive arrangements with her boyfriend. She may have said, for example, that she blamed her boyfriend because she was too frightened or ashamed or embarrassed to blame the man who was her mother's partner. As it is, however, we do not know what she would have said. In our judgment this evidence went to, but no further than to rebut the evidence adduced by the prosecution in the case against the appellant.

The case was further complicated by the fact that the appellant had not been convicted of any of the alleged rapes (to which this evidence might most obviously have been relevant) but had been convicted of the indecent assault counts which similarly depended on LB's credibility. As to this Lord Judge said:

In our judgment there is no doubt that the unwholesome sexual activities alleged by LB against the appellant, whether they amounted to indecent assault or eventually culminated in occasions of non-consensual sexual intercourse, were all utterly and totally entwined. Of itself that would not necessarily create any problems with the safety of the verdicts. But, having examined all of the evidence in this case in the light of its specific facts, we are left in this state of mind. We do not, and cannot, know (and because of all the circumstances we are troubled that we cannot know) the likely impact on the jury's deliberations if the full evidence relating to LB's pregnancy had been deployed and properly explored in evidence before them. It might have made no difference. But we are unable to exclude the realistic possibility that where, for example, the jury were unable to agree on the two rape counts, they may have acquitted the appellant. If they had acquitted of all the suggested occasions when sexual intercourse was alleged to have taken place, they would then have had to reflect on the impact of their findings about sexual intercourse on the complainant's credibility in relation to the indecent assaults which on her account were taking place at the same time that sexual intercourse took place. None of that means that the jury would have acquitted. However, we cannot be sure that in those circumstances they would have convicted of indecent assault. Our decision in this appeal is fact-specific. We have been left with doubts about the safety of the convictions of indecent assault returned by a jury which did not have all of the available admissible relevant material.

The Court of Appeal remains untroubled by the fact that a jury can find a complainant to be unconvincing in respect of one uncorroborated allegation but convincing in respect of another. They must think she might well be fabricating some of the allegations, and yet they still regard her as a credible and trustworthy witness in respect of others. It is a pity that juries cannot be invited to explain their reasoning in such cases, because on the face of it such reasoning is inconsistent and makes no sense.

F7.16 Protection of Complainants in Proceedings for Sexual Offences

Garaxo [2005] All ER (D) 363 (Apr) was considered in Murray [2009] EWCA Crim 618,, in which the complainant's allegation against the defendant was similar in certain respects to an allegation that she had made against another man in 2001 but which had not been pursued beyond an initial report to the police. In each case the complainant alleged that the man in question attacked her on her own bed after telling her that she 'wanted it' or would 'like it'. The trial judge ruled that there was no 'proper evidential basis' to suggest that the allegation made in 2001 was false and so the defence were not permitted to raise it at trial. The conviction was quashed. Dyson LJ said:

23. The difficulty lies in what constitutes a proper evidential basis. In our judgment, it is less than a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false. In Garaxo at paragraph 14 this court considered that there was a proper evidential basis if there was material such that, depending on the answers given by the complainant in cross-examination, the jury could have been satisfied that the previous complaint was untrue, or there was material which was capable of founding an inference that the complaint was untrue.

24. In applying this test we do not think that judges will be assisted by an examination of the facts of other cases . . . The exercise which a judge is called on to perform is fact sensitive. At one extreme will be cases where a previous complaint was obviously untrue, for example where the complainant admits that it was untrue and the withdrawal is manifestly reliable. It would be absurd if that evidence could not be adduced by the defendant or the subject of cross-examination on the grounds that it is about previous sexual behaviour. The other extreme is the case where the defendant suggests in cross-examination that a previous allegation by the complainant of a sexual offence against a third party is untrue where there is overwhelming evidence that it is true. Most cases are likely to fall between these two extremes. It will be a matter for the judge to decide on which side of the line any particular case falls. It is not an exercise of discretion. Rather it is a matter for the judge to evaluate on the basis of all the relevant material. But, as is common ground in this case, the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false.

25 . . .

26. It is a striking feature of this case that the judge did not ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. That is what was entailed by the question whether there was a proper evidential basis for the assertion that the complaint was false. If the judge had focused on the question whether on the material before them the jury could have been satisfied that the complaint was false, he should have concluded that the jury could have been so satisfied. As Sweeney J said in the course of argument, there were a number of features relating to the previous complaint which could have led a jury to this conclusion. First, there was the interval of four months between the date of the alleged rape and the date when the complainant reported it to the police. Secondly, there were aspects of the complaint which were puzzling and which caused the investigating police to be sceptical: some of them merit separate mention, but, for example, the police thought it was strange that, according to her account, the complainant had not seen the alleged attacker since the date of the alleged offence although they were members of the same circle of friends. It is also to be noted that on page 2 of the Crime Investigation Plan the police listed a series of questions that they would have wished to ask the complainant about her account in order to test it. Thirdly, there is the fact that the complainant did not follow through with her complaint and would not allow the police to pursue an investigation into what was, if her account was true, a very serious offence. Fourthly, the complainant was willing to give the police only sufficient information to enable her to achieve her goal of being re-housed. Her desire to be re-housed, which was her motive for reporting the matter to the police, raised questions as to her true reasons for making that report.

27. When asked why these facts, when taken together, could not have formed the basis of a conclusion that the complaint was untrue, [counsel] was unable to give an answer. In our judgment, there is no answer. The judge dismissed these facts as, in effect, being of no consequence, but he did so without the benefit of knowing what answers the complainant would give if cross-examined about them. He was in no position to do so. In our view, therefore, the judge was wrong to hold that the proposed cross-examination was about the complainant's previous sexual behaviour rather than about a previous complaint. He should have concluded that section 41 did not apply in the circumstances of this case. . .

Further reasons for doubting the truth of the previous complaint must, with respect, include any similarities between it and the instant complaint, even though the similarities may not be particularly striking or unusual. Where a complainant can be shown to have made broadly similar allegations against different men on different occasions one is surely bound (initially at least) to have concerns about this. There may in the end be good reasons to explain such a thing (e.g., the complainant's inherent vulnerability or her dangerous life style) but it is hard to see how such matters can properly be dismissed as being of no relevance or concern to the jury.

F7.16a Protection of Complainants in Proceedings for Sexual Offences

Difficult cases continue to be thrown up by the YJCEA 1999, s. 41. In Harris [2009] EWCA Crim 434, the complainant (C) alleged that she had been violently raped at knifepoint by D, whom she had met and invited back to her flat when both had been drinking heavily. There was significant evidence to support C's complaint, including evidence of D's violent (but not sexual) propensities that were admitted under the CJA 2003, s. 101(1)(d); but he claimed that he and C had initially engaged in consensual sexual activity and that she had then attacked him with the knife. Because of s. 41, the jury was not allowed to hear evidence of C's medical records which included references to her '. . . life choices involving behaviours which potentially puts her at risk of abuse from others, i.e. casual sex with illegal taxi drivers, excessive alcohol intake, etc., and also . . . a wish to punish herself.'

In other words, character evidence that provided some limited support for the prosecution case was admitted against D, but sexual history / character evidence relating to C that might otherwise have provided comparable support for the defence case was excluded. The Court of Appeal do not seem to have been entirely comfortable over this but declined to interfere. Thomas LJ said:

In this case we consider that the judge adopted a view on similarity which was open to him within that margin of judgement open to a decision maker. We consider that he was entitled to conclude that what was set out in [C's medical records] was not sufficiently similar to what was alleged by the appellant to have happened on the night in issue. He was also entitled to conclude that cross-examination on the basis of what was set out in the two letters would have brought into play matters in relation to her general sexual behaviour and not the similarity of the two occasions. We therefore consider that the ruling was one that cannot be successfully challenged in this court.

F7.24 Protection of Complainants: Evidence or a Question Relating to Evidence Adduced by the Prosecution

The natural meaning of the phrase 'evidence adduced by the prosecution' in the YJCEA 1999, s. 41(5)(a) is evidence given by prosecution witnesses in the course of their evidence-in-chief and by defence witnesses in the course of cross-examination by the prosecution. However, in order to ensure a fair trial, the phrase should be read in a broader sense to include evidence given by prosecution witnesses in the course of cross-examination by the defence, provided that it was not deliberately elicited by defence counsel and was potentially damaging to the defence case (Hamadi [2008] Crim LR 635).

F7.31 Previous Inconsistent Statements

Under the Criminal Justice Act 2003, s. 119, the previous inconsistent statements of a witness, once admitted or proved, are admissible as evidence in the case, and are no longer merely relevant to the credibility of the witness himself. It does not follow, however, that a jury must always be directed explicitly in such terms.In Billingham [2009] EWCA Crim 19, the apellants were re-tried for murder, after the original jury had failed to agree. Walden, their alleged accomplice, was a key prosecution witness. He had pleaded guilty to the murder at the original trial, but had previously (and repeatedly) denied that the appellants had been involved. He now testified that they had been involved with him in the offence. He accepted that he had given various previous accounts to police, solicitors, prison visitors and a psychiatrist in which he had failed to mention the involvement of the appellants, but said that he had lied in his earlier accounts so as to cover-up for them.

Another prosecution witness, Blanchard, had similarly failed to incriminate the appellants in her original statements, but now did so.

In summing up, the trial judge did not fully direct the jury as to the evidential status of the original statements under s. 119, but did remind them of those statements and warned them that:

. . . you have to make a judgement about the truthfulness and reliability of the evidence of the two witnesses upon whom the prosecution principally rely, Iain Walden and Theresa Blanchard. The defence contended that the evidence of each is not true. Furthermore, the defence suggested that the accounts which Iain Walden was giving to his solicitors in 2004 and February 2005 were much closer to the real truth than the account that is given to you in the witness box. You have to consider that suggestion. It is for you to decide in each case whether the accounts that Iain Walden has given, and the accounts that Theresa Blanchard has given, in the witness box is true and you act upon it only if after considering the whole of the evidence in the case you are sure in each case that it is true.

The Court of Appeal did not think that a full s. 119 direction would have been helpful in those circumstances. Stanley Burton LJ said:

For a jury to be directed . . . that a previous statement is just as much evidence as the witness's testimony in court is liable to confuse them: the jury may take the direction to mean that they are obliged to give the previous statement the same evidential weight as the testimony (and vice versa).

In order to convict the appellants, the jury had to be sure that the testimony of Walden and Blanchard was true. If they were, it followed that they rejected the truth of their previous inconsistent statements. The fact that, as a matter of the law of evidence, those previous statements were evidence became immaterial at that point.

The court concluded by noting a problem with the wording of the JSB specimen direction on previous inconsistent statements:

We . . . consider that the present JSB direction should be reconsidered. Where the previous statement is exculpatory of the defendant, it is sufficient for the jury to conclude that it may be true: the present direction requires the jury to be sure that even an exculpatory statement is true. It would be preferable for the direction to make this distinction. However, we consider that this had no effect on the adequacy of the summing up or the safety of the convictions, since it is clear that the jury concluded that they were sure that the incriminating testimony of Walden and Blanchard was true.

F8 Documentary Evidence and Real Evidence

F8.38 Views

Parry v Boyle (1987) 83 Cr App R 310 was considered in M v DPP [2009] EWHC 752 (Admin), a criminal damage case, in which it was held that magistrate had not taken part in a reconstruction merely by parking his car, on arrival at the scene of a view, in a parking place that had been occupied by the alleged victim's car at the time of the alleged offence. The purpose of the view was to establish how much a witness (Collins) could have seen of the offence from his balcony. Leveson LJ said:

What is critical before any court embarks upon any view is that there is absolute clarity about precisely what is to happen on such a view, about who is to stand in what position, about what (if any) objects should be placed in a specific position and about who will do what. None of this should happen at the scene of a view, which should be conducted without discussion for the very reasons identified in this case, namely that otherwise not all involved can participate. If a misunderstanding arose as to what the purpose of this visit to the site was to be that is indeed unfortunate. From the nature of the case it is clear that the justices viewed it merely as an attempt to see the line of sight from Mr Collins' balcony to the scene of this damaged car in the light of the allegation that the wall blocked Mr Collins' view. That is precisely what they undertook, and I reject the criticisms advanced by [counsel] in relation to it.

F9 Public Policy and Privilege

F9.6 Exclusion on Grounds of Public Policy: National Security, Dipomatic Relations and International Comity

In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), the High Court was required to consider whether it should order the publication or release of its own earlier summary (or redaction) of 42 secret US intelligence documents which apparently provide evidence that the claimant was indeed subjected to 'cruel, inhuman or degrading treatment or torture' while in custody in Pakistan. There was no question of the original documents being published, and in the court's view no damage would thereby be caused to legitimate intelligence or anti-terrorist operations. The court also observed that:

The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy. Championing the rule of law, not subordinating it, is the cornerstone of a democracy. . . .

It is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice.

The court nevertheless stopped short of releasing or publishing this redaction, because of concerns that such action might lead the US intelligence agencies (despite the replacement of the Bush Administration by the Obama one) to withhold vital information from British colleagues in the future. As a result, it will fall to the new US government to decide whether to allow this material to be put into the public domain.

F9.25 Privilege against Self-incrimination: Statutory Provisions Requiring Answers to Questions

In R (Malik) v Manchester Crown Court [2008] EWHC1362 (Admin), where the Divisional Court was of the view that the Terrorism Act 2000, sch. 5, para. 6 (see B10.215) does not oust the privilege, it was said that clear language (express or by necessary implication) is required to show that Parliament intended to abrogate the privilege gainst self-incrimination, the privilege being a fundamental principle of the common law.

F9.27 Privilege against Self-incrimination: Free-standing Material Not Created under Compulsion

The House of Lords has given leave to appeal against the decision of the Court of Appeal in C plc v P [2007] EWCA Civ 493, now reported at [2007] 3 WLR 437. In R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) the Divisional Court has expressed the view that the law is currently unclear on the question whether the privilege against self-incrimination applies to pre-existing documents and that the preferred approach for judges to adopt, until the House of Lords has resolved the appeal in C plc v P, is to treat the privilege as an important relevant factor to be taken into account when exercising discretion in respect of the admissibility of pre-existing documents. In R (Malik) v Manchester Crown Court itself, which concerned the requirement to disclose material under the Terrorism Act 2000, sch. 5, para. 6 (see B10.215), guidance was given as to the factors to be taken into account in exercising the discretion. These were said to include the degree of benefit of the material to the investigation, the importance of the privilege itself, the gravity of the offence with which the person surrendering the privilege might be charged, the risk of prosecution, and the power, in any subsequent prosecution, to exclude evidence under the PACE 1984, s. 78. In the later decision of S [2008] EWCA Crim 2177, [2008] All ER (D) 89 (Oct) a requirement, contained in a notice under the RIPA 2000, s. 49, for disclosure of a key to data in encrypted files, was held not to infringe the privilege against self-incrimination nor to contravene the ECHR, Article 6. The Court of Appeal held that, although it was clearly established in domestic law that evidence existing independent of the will of the subject does not normally engage the privilege, and the key existed separately from each defendant's 'will', being a fact and not an admission of guilt, a requirement of disclosure under compulsion of knowledge of the means of access to material may engage the privilege, if the material itself is incriminating. However, even assuming that the material in question was incriminating, it would have been open to the trial judge to exclude evidence of the means by which the prosecution had gained access to it. Moreover, in any subsequent trial, there would be power under the PACE 1984, s. 78 to exclude evidence in relation to the material, the key or means of access to it, and the defendant's knowledge of the means of access to it. Thus, neither the process nor any subsequent trial could realistically be stigmatised as unfair.

F9.29 Legal Professional Privilege

In Re C (application for judicial review) [2009] UKHL 15, the applicants (from Northern Ireland) questioned whether the police or security services could lawfully engage in covert surveillance of consultations between suspected offenders and their legal or medical advisors.

The House of Lords held that RIPA 2000 permits covert surveillance of communications between persons in custody and their legal or medical advisers, notwithstanding that such communications otherwise enjoy legal professional privilege and despite the existence of a statutory right to consult a solicitor privately, but such surveillance is lawful only when carried out in accordance with the Act and its associated Code of Practice and only where it does not violate Convention rights. Lord Carswell said:

99. The appellants submitted that it was not the intention of Parliament that the general surveillance provisions of RIPA should override the specific provisions in the earlier enactments which conferred statutory rights upon persons detained to be interviewed by lawyers in such a manner as to be able to speak in confidence. Section 58 of PACE and its Northern Ireland equivalent provide that a person held in custody in a police station is entitled 'to consult a solicitor privately at any time.' Paragraph 7 of Schedule 8 to the Terrorism Act 2000 similarly provides that a person detained may consult with a solicitor 'privately' as soon as practicable. In both cases the exercise of the right may be deferred in certain circumstances, but subject to that it is not restricted. . . .

100. . . . In its natural and ordinary sense [RIPA] is capable of applying to privileged consultations and there is nothing in its wording which would operate to exclude them. . . . It seems to me unlikely that the possibility of RIPA applying to privileged consultations could have passed unnoticed. On the contrary, it is an obvious application of the Act, yet no provision was put in to exclude them.

101. Secondly, I do not consider that it is at all a clear case for the application of the maxim generalia specialibus non derogant. When the earlier provisions relied on by the appellants were enacted, there was no equivalent of RIPA relating to powers of surveillance. Those provisions were simply designed to ensure that the various categories of detained persons could have professional consultations in private, there being no question that covert surveillance might be carried out. They were not special exceptions to be preserved when a general rule was passed into law.

102. Thirdly, there is the need to incorporate exceptions to the inviolability of privileged consultations. One such is the Cox & Railton exception: if it were not possible to exercise covert surveillance of legal consultations where it is suspected on sufficiently strong grounds that the privilege was being abused, the law would confer an unjustified immunity on dishonest lawyers. There may be other situations where it would be lawful to monitor privileged consultations, for example, if it is necessary to obtain information of an impending terrorist attack or to prevent the threatened killing of a child. The limits of such possible exceptions have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute.

103. Fourthly, the Code makes detailed provision for obtaining authorisation for monitoring consultations covered by legal professional privilege. It was laid before and approved by Parliament, but no point appears to have been taken that RIPA did not cover such consultations. It would be surprising at least that no objection was made to the inclusion of those provisions in the Code if it was thought that Parliament had not intended that the consultations be covered by RIPA.

. . .

105. I conclude accordingly that Parliament intended that the covert surveillance provisions of RIPA should extend to the type of lawyer/client and doctor/patient consultations which are ordinarily protected by legal professional privilege.

This does not mean that such surveillance will ordinarily be lawful. The Appellate Committee was highly critical of the Secretary of State's failure to make an order under RIPA s. 47(1)(b) characterising surveillance of consultations between detainees and their legal advisers as intrusive surveillance, with the safeguards that go with that level of surveillance. (By RIPA s. 32, an authorisation for intrusive surveillance may be granted only if the Secretary of State or the senior authorising officer believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or in the interests of the economic well being of the United Kingdom.) If this were done, said Lord Carswell, it would make consideration of directed surveillance of such consultations superfluous.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.3 Convictions

Ainscough (2006) 170 JP 517 was considered in W [2009] All ER (D) 75 (Feb) (see below, F12.22).

F12.11 The Statutory Gateways

The often complex relationship between the various gateways to admissibility of bad character evidence under the Criminal Justice Act 2003, s. 101, was examined in Assani [2008] EWCA Crim 2503, in which the court stressed the importance of ss. 105(7) and 106(3). These provisions (which seem to have been overlooked at trial) limit the admissibility of evidence of bad character under ss. 101(1)(f) and (g) to prosecution evidence. They can never enable evidence of the bad character of one defendant to be adduced at the behest of a co-defendant. (The same is of course true of the gateway under s. 101(1)(d), which is limited by s. 103(6).) Maurice Kay LJ said:

In short, we do not consider that gateway (f) - or for that matter, gateway (g) - permits evidence of the bad character of one defendant to be adduced at the behest of another defendant. Applications of that sort often arise, but their governing provision is gateway (e). Gateway (e) was also relied upon by the appellant at trial. The difficulty is that, whereas under gateway (f) the evidence must have "probative value" in correcting a false impression, under gateway (e) the evidence must have "substantial probative value" in relation to an important issue between defendants. That is an additional protection for the defendant whose character is under attack by a co-defendant. ...

F12.13 Evidence of Bad Character Adduced by Prosecution to Prove Guilt or Untruthfulness

As to the problems that may arise where hearsay evidence is adduced to prove the accused's bad character or previous offending, see Z [2009] EWCA Crim 20, which is examined at F16.18 below.

F12.14 Evidence Once Admitted is Relevant for All Purposes

Campbell [2007] 1 WLR 2798 was considered in Lafayette [2008] All ER (D) 213 (Dec). No full transcript of the court's judgment was available at the time of writing, but it appears that it has required a distinction to be made between taking previous convictions or bad conduct into account when evaluating a defendant's credibility, and using those convictions or bad conduct as evidence of a propensity to offend. Where evidence of a defendant's bad character is admitted under s. 101(1)(g) but is not admissible under s. 101(1)(d) to show propensity, said the court, a jury should be directed to treat such evidence as relevant only to the defendant's credibility and should be warned against treating it as evidence of any propensity to commit offences of the type with which he is now charged.

At first sight this appears to go against what was said in Highton [2005] 1 WLR 3472 as well as what was said in Campbell. Perhaps all will be explained once the full transcript is made available. The court may perhaps be saying only that where evidence would be logically incapable of establishing propensity then a warning to that effect might be needed.

F12.22 Criminal Justice Act 2003: Admissibility under s. 101(1)(d)

The requirement in Hanson [2005] 1 WLR 3169 to give careful consideration to the probative value of propensity evidence was stressed in Urushadze [2008] EWCA Crim 2498, where U's previous convictions for shoplifting were of little value in indicating a propensity towards street robbery.

F12.22a Propensity as an Issue

Hanson [2005] 1 WLR 3169 was considered in W [2009] All ER (D) 75 (Feb), in which the court rejected an argument that evidence of a single sexual assault on a boy 11 years before was incapable of providing evidence of a propensity to commit offences of that kind unless it involved some highly unusual form of sexual activity. The appellant's behaviour on that occasion had involved touching the penis of a 13-year-old boy, and the instant case involved a similar complaint by a boy of the same age, to which the defence was one of accidental contact. The court held that the evidence of the former complainant (who testified at the later trial) was evidence which the jury could reasonably have considered to be evidence of propensity and could assist them in deciding whether the touching complained of had or had not been accidental.

F12.23 Propensity to Untruthfulness

Cambell [2007] 1 WLR 2798 was considered in Foster [2009] EWCA Crim 353, where the trial judge in a robbery case was criticised for directing the jury as if D's previous convictions for robbery and attempted robbery were primarily relevant to his credibility, when they had been admitted under the Criminal Justice Act 2003, s. 101(1)(d) as relevant to criminal disposition. The Court of Appeal did not think that this impacted significantly on the safety of the jury's verdict. Richards LJ said:

17. It is true that in the present case the judge does not appear to have taken sufficiently on board the guidance in Campbell, although we are told that a copy of that judgment was provided to him. It was unhelpful to tell the jury that they could take the previous convictions into account in deciding the appellant's truthfulness. The judge did not give the jury the help to which they were entitled in relation to focusing on the possible relevance of the previous convictions, namely to the question whether the appellant had a tendency to commit offences of the kind with which he was charged on this occasion. We accept the submission that the direction was unsatisfactory.

18. Nevertheless, we do not think that in this case the jury can have been seriously misled by the direction given by the judge. That direction emphasised that the jury must not convict the appellant on his record and that they must consider all the evidence in the case. It also emphasised the age of the previous convictions. The bearing that those convictions might have on the question of the appellant's guilt was a matter of common sense. There is no reason to believe that the jury may have placed impermissible reliance on them. . . .

F12.31 Risk of Collusion between Witnesses: CJA 2003, s. 107

The nature of the test established by the CJA 2003, s. 107, as previously examined in C [2006] EWCA Crim 1079, [2006] 1 WLR 2994 and Lamb [2007] EWCA Crim 1766, was considered once again in K [2008] EWCA Crim 3177, [2008] All ER (D) 223 (Dec). The actual decision in this case seems not to have turned on s. 107. It was not a case in which evidence of bad character was obviously contaminated. It was one in which a judicial direction was needed as to the dangers of innocent contamination, but the trial judge's directions in that respect had been adequate.

One point should perhaps be made about s. 107 that is not made in any of these cases, and is, with respect, badly obscured by certain passages from the judgment in C that are repeated in K, including this passage:

The effect of section 107 is to reduce the risk of a conviction based on over-reliance on evidence of previous misconduct and acknowledges the potential danger that, where the evidence is contaminated, the evidence of bad character may have a disproportionate impact on the evaluation of the case by the jury. In other words the dangers inherent in contamination may be obscured by the evidence of the defendant's bad character.

There may indeed be cases in which a court or jury would be tempted to convict D on the basis of his appalling bad character or criminal record, even though the only charge currently brought against him appears to be based on contaminated evidence (e.g., the complainant appears to have been coached by her mother). If the evidence of such contamination is clear, a trial judge might be justified in stopping such a case, but he cannot invoke s. 107 as the basis for such a ruling. The evidence that must be 'contaminated' before s. 107 can bite must (on any normal reading of s. 107 itself) be the evidence of bad character itself. This may include cases in which A's contaminated complaint against D is used to support B's contaminated complaint against D, and vice versa (see s. 112(2)) but not cases in which the only bad character evidence is itself unblemished.

F15 The Rule Against Hearsay

F15.12 Hearsay and Matters Stated

In West Midlands Probation Board v French [2008] EWHC 2631 (Admin) it was held that, where a prisoner had been released on licence, the licence or notice (which set out the terms and conditions of release and which was signed by the prisoner and the prison governor) was hearsay in consequence of the CJA 2003, s. 115(3), the purpose of the maker being to cause the prisoner and others to believe the statements in the licence and to act accordingly.

The court went on to hold that the licence was an admissible document despite being hearsay (see F16.16 and F16.22), but with respect it is doubtful whether it was hearsay at all. The purpose of the licence or notice would was to set out the terms on which the prisoner was to be set at liberty. On that basis it provided original and not hearsay evidence of those terms. As the court said (at [32]) the notice had been produced to prove three things:

(i) that a Licence had been granted to French ...; (ii) that the Licence contained conditions, as set out in the Licence, which included the condition that he must keep appointments with the probation service as arranged; and (iii) that French had counter-signed the Licence, thereby acknowledging that he had been given it and that the requirements had been explained to him.

Even if one were to view the notice as a mere memorandum of the terms of release, rather than as the formal source of those terms, the presence of the prisoner's undisputed signature on the document could not be regarded as anything other than original evidence of the fact he had been given it and had signed it.

F16 Exceptions to the Rule Against Hearsay

F.16.4 Unavailable witnesses

See, as to anonymous witnesses, Criminal Evidence (Witness Anonymity) Act 2008 at D14.118 of the main work and above.

F16.16 Documents Prepared for Purposes of Criminal Proceedings or Investigation

The licence setting out the conditions of a prisoner's release is not a document prepared for the purposes specified by the CJA 2003, s. 117(4)(a): (West Midlands Probation Board v French [2008] EWHC 2631 (Admin)).

F16.18 Discretionary Exclusion under PACE s. 78

In Pulley [2008] EWCA Crim 260 it was held, in line with Cole and Keet [2007] 1 WLR 2716, that the provisions of the CJA 2003 s. 114(2) should have been considered when ruling on the discretionary exclusion of statements by a deceased person that were otherwise admissible under s. 116(1). Because there were serious doubts about the accuracy of the statements, the contents of which did not fit comfortably with other available evidence, the admission of the statements deprived P of a fair trial.

F16.18a Loss of Right to Cross-examine and Fair Trial Provisions

The European Court of Human Rights has delivered an important ruling in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 that considerably restricts the extent to which hearsay evidence from dead or absent witnesses may be relied upon by the prosecution in criminal trials, without being found to infringe the defendant's right to a fair trial under the ECHR, Article 6(1) and (3).

The Court of Appeal in Al-Khawaja [2006] 1 WLR 1078 had ruled that D's right to a fair trial was not infringed where two of his patients complained of indecent assaults committed on them in the course of hypnotherapy and the statement of one of them (referred to as 'ST') was admitted in evidence following her suicide. Two other women gave supporting evidence and there was no suggestion of collusion. Given that D was able to attack ST's statement on ground of inconsistency with other evidence and by employing expert evidence in relation to the altered mental state brought about by hypnosis, and given that the trial judge had warned the jury of the risks of acting on untested hearsay, the Court of Appeal had held that D's rights under Article 6 were not infringed; but according to the Court of Human Rights this was not enough to compensate for the difficulties the admission of this evidence created for the defence:

While it was certainly open to the defence to attempt to challenge the credibility of S.T., it is difficult to see on what basis they could have done so, particularly as her account corresponded in large part with that of the other complainant, with whom the trial judge found that there was no evidence of collusion. The absence of collusion may be a factor in domestic law in favour of admissibility but in the present case it cannot be regarded as a counterbalancing factor for the purposes of Article 6 § 1 read with Article 6 § 3(d). The absence of collusion does not alter the Court's conclusion that the content of the statement, once admitted, was evidence on count one that the applicant could not effectively challenge. As to the judge's warning to the jury, this was found by the Court of Appeal to be deficient. Even if it were not so, the Court is not persuaded that any more appropriate direction could effectively counterbalance the effect of an untested statement which was the only evidence against the applicant.

In Tahery's case, the hearsay evidence complained of as that of a witness (T) who was alive and whose identify was well known to the defendant. T had been adjudged too scared to give oral testimony, but the Strasbourg court ruled:

It is appropriate for domestic courts, when faced with the problem of absent or anonymous witnesses, to consider whether alternative measures could be employed which would be less restrictive of the rights of the defence than admitting witness statements as evidence. However, the fact that alternative measures are found to be inappropriate does not absolve domestic courts of their responsibility to ensure that there is no breach of Article 6(1) and (3)(d) when they then allow witness statements to be read. Indeed, the rejection of less restrictive measures implies a greater duty to ensure respect for the rights of the defence. As regards the ability of the applicant to contradict the statement by calling other witnesses, the very problem was that there was no witness, with the exception of T, who was apparently able or willing to say what he had seen. In these circumstances, the Court does not find that T's statement could have been effectively rebutted. The Court accepts that the applicant gave evidence himself denying the charge, though the decision to do so must have been affected by the admission of T's statement. The right of an accused to give evidence in his defence cannot be said to counterbalance the loss of opportunity to see and have examined and cross-examined the only prosecution eye-witness against him.

In the view of the court, the starting point in all such cases is that

Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of Article 6(1) and (3)(d) is set out in Lucà v Italy (2003) 36 EHRR 807...

If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6. The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6...

The court was however prepared to distinguish cases such as Sellick [2005] EWCA Crim 651 in which witnesses are absent because they have been intimidated by the defendant himself or by persons acting on his behalf.

F16.18b Hearsay, Loss of Right to Cross-examine and Fair Trial Provisions

In Z [2009] EWCA Crim 20, the trial judge permitted the prosecution to adduce evidence of the appellant's alleged bad character by means of hearsay allegations. The appellant was charged with raping and indecently assaulting the complainant when she was a child. The alleged offences were historic and were alleged to have been committed between 1985 and 1989. He denied the charges. In support of the complainant's evidence, the jury were told at second hand of offences allegedly committed by the appellant against two other women: D, who was unwilling to give evidence, and Z, the appellant's former wife, who was deceased. The prosecution contended that the evidence provided important explanatory evidence; went to propensity; and corrected a false impression given by the defendant, namely that he was a good family man. But even if it did potentially fit within one or more of the bad character gateways under the CJA 2003, s. 101, the evidence in question was hearsay and its admission had to be justified under s. 114 of the same Act. In the case of D, this was clearly problematic. As the Court of Appeal observed:

If she had given live evidence, there could have been no complaint as to its admission. Her evidence was clearly relevant to establish propensity and to correct the impression given by the appellant of a good family man. The problems that have arisen in this case arise more from the admission of the allegations . . . as hearsay evidence.

D's evidence was not admissible under s. 116. She was not incapable of testifying through fear, but had refused to give evidence because she wanted to put her [alleged] abuse at the hands of the appellant behind her, and did not want to relive her experiences. Her complaint (made to her doctor) had been credible, but was not underpinned by any conviction of the appellant.

That left only s. 114(1)(d), but this provision, said the court:

. . . must be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented.

Furthermore, the judge had made no express reference to the criteria laid down by s. 114(2), and that was seen as a serious irregularity. Stanley Burton LJ said (at [22] –[23]:

As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission.

When he gave his ruling permitting the admission of the hearsay evidence of the allegations of D and Mrs Z, [the trial judge] did not make it clear that he had taken into account the matters listed in section 114(2). His error, in our judgment, was to treat the prosecution's application as 'fairly conventional' and 'straightforward'. An application to adduce undisputed evidence of misconduct, such as admitted convictions for relevant crimes, would indeed be fairly conventional. An application to call as witnesses the victims of the defendant's misconduct as evidence of his bad character might be straightforward. But in our judgment an application to adduce in evidence hearsay evidence of disputed serious misconduct as bad character evidence was most certainly not conventional, and it should not have been treated as straightforward.

There was potentially less of a problem with the evidence of the allegations made by Mrs Z, who had since died. Her evidence would almost certainly have fitted within at least one of the s. 101 gateways and as hearsay it was admissible under s. 116(2)(a). The Court of Appeal was nevertheless unhappy with it. The Court unfortunately erred (at [27]) by suggesting that, "section 116(4), and in particular paragraph (b), fell to be considered . . ." With respect, s. 116(4) only applies to evidence under s. 116(2)(e). But the Court's other concern may have more validity:

If the judge was minded to admit the evidence under section 101, he had then to consider whether the jury would reasonably be able to be sure of its truth. When he gave his ruling, he did not state whether he considered that they would be able to do so. In any event, however, the judge in his summing up did not make it clear to the jury that this evidence could be taken into account only if they were sure of the truth of Mrs Z's allegation.

No reference was made to the ruling of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110, which is not surprising because that ruling was delivered only three days earlier. See the January update at F16.18. Al-Khawaja and Tahery each concerned problems caused by reliance on hearsay in place of the oral evidence of actual complainants, but many of the underlying issues were the same as those in Z. Hearsay evidence may be almost impossible for the defendant to discredit or disprove through cross-examination and a defendant faced with such evidence may struggle to secure a fair trial.

In Sadiq [2009] All ER (D) 93 (Jan) hearsay evidence admitted under s. 114(1)(d) took the form of statements made by a witness at a previous trial. The witness had suffered grievous injuries which left him unable to speak, and he had testified by point to letters on an alphabet board, but he had been able in this way to answer questions put to him in cross-examination by D's counsel. When the jury failed to reach a verdict, the witness refused to testify again, and it was on this basis that his original testimony was recycled using s. 114(1)(d). The case was decided just before Al-Khawaja and Tahery v United Kingdom, but it may perhaps be the kind of case in which reliance on hearsay remains permissible. D could not complain that he had been deprived of the chance to cross-examine the witness.

A third case to raise issues under s. 114(1)(d) was Khan [2009] EWCA Crim 86, in which the appellant was convicted of raping a prostitute. He had sought to call hearsay evidence in the form of a statement by another prostitute, Sudlow, who was available to give evidence but was unwilling to do so on behalf of the defendant, perhaps because she was a friend of the complainant. The trial judge had taken the view that it was not in the interest of justice for the statement to be read. Not only did it contain a number of manifest inaccuracies, but in addition the Crown had offered, in the usual way, to use the services of the local police to bring Sudlow to court and there was no suggestion that she had disappeared. Section 116 was thus inapplicable. The court held that the judge had been right to exclude the hearsay evidence. Bean J explained (at [15]):

We consider that a very important factor in assessing whether it was in the interests of justice to admit the statement as hearsay was the fact that Ms Sudlow was available to be called. That, coupled with the manifest inaccuracies in the statement, pointed clearly, in our judgment, to it being desirable in the interests of justice that the witness should be called. [Counsel] says that it is not right that the defence should be required to call a witness who might well prove hostile when there was a written statement made to the police within two days of the events in question. But it seems to us that had Ms Sudlow been brought to court and had she given oral evidence, one way or another the defence would have been able to get the contents of the statement before the jury. If she had given evidence broadly consistent with the statement but perhaps with some failure of recollection of detail, the statement would have been admissible under section 120 of the 2003 Act as a previous consistent statement. If she had turned hostile and the judge had granted an application under the Criminal Evidence Act 1865, section 3, for her to be treated as hostile, the statement could have been put to her in cross-examination by the defence. If, however, she had simply given coherent evidence in chief for the defence and then to a greater or lesser extent contradicted that and the contents of the statement in cross-examination, then the statement could perfectly properly have been put to her in re-examination if not earlier. Given that there were some inaccuracies in the statement, it was much more desirable that they should be explored in front of the jury, so that the jury could make their own assessment about the value of the statement, rather than that the jury should have been left in the unsatisfactory position of having a written statement, some of which was clearly inaccurate, and having to work out what to make of it. The judge was right to reject the application.

F16.20 Hearsay Admissible in the Interests of Justice

A hearing on admissibility under the CJA 2003, s. 114(1)(d) must be conducted on the basis that the material and arguments deployed are available to all concerned parties. Material that had been presented to the judge on an ex parte application and was not available to the defence should form no part of the consideration (Ali [2008] EWCA Crim 146).

F16.22 Admissibility of Public Documents

In West Midlands Probation Board v French [2008] EWHC 2631 (Admin) it was held that, where a prisoner released on licence was charged with breach of conditions, a copy of the licence could be proved either as a public document under the CJA 2003, s. 118(1)(b) or under s. 117(see F16.13 of the main work) or under the Documentary Evidence Act 1868, s. 2 (see F8.10 of the main work). It is not clear what hearsay purpose was served by proving the licence: see F15.12 above.

F16.47 Video Recordings of Evidence

In R (SA) [2008] 2 Cr App R 112 the failure to give notification to the court of the availability of the special measure of video recorded evidence, the same having been brought into force by statutory instrument, did not render inadmissible evidence given pursuant to a special measures direction permitting a recording to be given in evidence.

F17 Admissions and Confessions

F17.19 Confession Tendered by Co-Accused

In Nazir [2009] EWCA Crim 213, the appellant and M were jointly charged with the murder of the appellant's sister, S. It was an 'honour killing' within a Pakistani family of a girl who sought a marriage of which the family disapproved. M admitted his involvement in the murder (although he claimed that he had not intended to kill her) and also said that nobody else was involved. The jury heard the terms of his confession but were directed (with the agreement of defence counsel) that:

Anything said by one defendant about another defendant in the course of a police interview when that other defendant is not present either to confirm or deny what he said cannot be evidence in the case of the other absent defendant and the reason for it is that because that second person is not there to either confirm or deny or challenge what he said.

That might have been an appropriate direction had M's confession been one that threatened to implicate the appellant, but since it tended to exonerate him it was admissible for that purpose by virtue of the PACE 1984, s. 76A .

The Court of Appeal in Nazir rejected the argument that only those parts of M's interviews that were incriminatory of M could properly have been taken into account by the jury, and those of his statements that were exculpatory of the appellant would have had to be excluded from their consideration. Stanley Burton LJ said:

We . . . can conceive of cases in which a statement made by a co-defendant to the police cannot sensibly be regarded as a confession. But statements made in an interview that are partly inculpatory of the interviewee and also in part exculpatory of another person are nonetheless confessions within the statutory definition. . . . In essence, [M] in his interviews said that he alone stabbed [S]. One cannot sensibly separate the admission that he stabbed her from the admission (for that is what it is) that he acted alone. By saying that he acted alone, he accepted sole responsibility for the murder. That was as much a confession as the statement that he stabbed her.

24. Moreover, for reasons that we give below, it was necessary for the jury to be able to have regard to the whole of the interviews in order for them to assess what if any weight should be given to those parts that were exculpatory of the appellant.

25. We conclude, therefore, that if the appellant had relied on s. 76A, the entirety of [M's] interviews would have been available to the jury. . . .

The court nevertheless concluded that the misdirection could not have affected the jury's verdict in the case against the appellant, whose conviction was upheld.

F17.49 Admissibility: Role of the Jury

Mushtaq [2005] 3 All ER 885 was considered by the Court of Appeal in Pham [2008] EWCA Crim 3182, in which the appellant complained that the jury had been directed to consider only whether his confession during a police interview was true, and not (as Mushtaq now requires) whether it had been obtained in circumstances that would make it inadmissible under the PACE 1984, s. 76(2).

The court noted that the judge ought to have followed Mushtaq, and that it was most regrettable that it had not been brought to his attention, but the court was satisfied that in the circumstances no injustice had been done to the appellant's case:

In truth, all that was necessary was for the judge to have directed the jury that if the appellant's account that his confessions were or may have been made, not because they were true but because of the oppression or conduct he described, then they were of no weight and could not be relied on. But no circumstances were being advanced whereby the confessions were made under oppression but were nevertheless true. In the real world there was no difference in this case between the confessions being made under oppression, on the one hand, and not being true on the other.

A confession may sometimes be false even though lawfully obtained, or it may sometimes be true even when made under oppression. The court in Pham perhaps meant to say that in the absence of independent corroboration, there was no way in this particular case in which the appellant's confession could be treated as reliable or trustworthy as long as there was any doubt as to whether it had been freely made. It may also have been hard to think of any explanation for him making a false confession unless he had been bullied or coerced into so doing.

One might be tempted to argue that if a confession is shown or admitted to be true, that makes it less likely that the police would have needed to resort to oppression, etc, in order to procure it. On that basis, judges might take account of evidence of truth or falsity when determining admissibility on the voir dire. But the Privy Council in Wong Kam-ming [1980] AC 247 refused to accept the logic of that argument.

F18 Identification Evidence

F18.10 Video Identification and Identification from CCTV Images

The guidance provided by the Court of Appeal in Smith [2008] EWCA Crim 1342 was noted and approved in Chaney [2009] EWCA Crim 21, in which the Court noted that following this judgment guidance has now been issued to police officers as to the procedure to be followed when the CCTV or other photographic evidence is submitted to officers in the hope that they may be able to identify a person shown in them.

The guidance is along the lines given by the Court in Smith. It assumes (as does Blackstone's Criminal Practice) that PACE Code D is not directly applicable in such cases, an assumption which the court in Chaney considered to be "well-founded and consistent with the judgment of this Court in Smith".

F18.34 Speculative Searches: Retention of DNA / Fingerprints

In S v The United Kingdom and Marper v United Kingdom (App. Nos. 30562/04 and 30566/04) [2008] All ER (D) 56 (Dec) the European Court of Human Rights has ruled against the practice of retaining and conducting speculative searches against DNA profiles and fingerprints from persons who have been arrested or charged but not convicted or cautioned. The national DNA database allegedly holds profiles on over 850,000 such persons. The court noted that although many member states use DNA or fingerprint databases in the fight against crime, the UK is:

The only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.

In contrast to the view previously adopted by the House of Lords in R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196, the Strasbourg court concluded that:

The protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere...

In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken - and retained - from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed . Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.

This judgment does not require the immediate destruction of all samples or fingerprints that have been taken from persons no subsequently convicted, but clearly it does require some changes to current practices. The Government has stated that:

We are carefully considering the detail of the judgment in the S and Marper case and its implications. DNA is a prime example where benefits to the criminal justice system and the rights of the individual need to be carefully balanced. That is why our approach to the European Court's judgment will be subject to wide consultation this year in a White Paper on Forensics.

F19 Inferences from Silence and Non-production of Evidence

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

The comments of the court in Brizzalari (2004) The Times, 3 March 2004, that a direction under the CJPOA 1994, s. 34 should be reserved for the mischief at which it is aimed, were endorsed in Maguire [2008] EWCA Crim 1028. The court discouraged 'anything which over-formalises common sense'.

F19.22 Accused with Physical or Mental Limitations

R (DPP) Kavanagh [2005] EWHC 820 (Admin) was approved in Tabbakh [2009] EWCA Crim 464, in which it was held that a defendant might be subject to possible adverse inferences under the CJPOA 1994, s. 35 even where his physical or mental condition might to some extent affect his ability to give evidence.  Many, if not most, such difficulties were matters to be taken into account by the magistrates or jury, in assessing the reliability of his evidence.  Such conditions do not necessarily justify a comprehensive failure to give evidence.

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