exam

Question 1

Lord Runciman, gave 4 reasons for false confessions

Answer 1

‘a morbid desire for publicity or notoriety

‘a desire to protect someone else.’

People can see a prospect of immediate advantage from confessing, (i.e. an end of the questioning and/or release from the police station),even though the long-term consequences are far worse

The suspect may be ‘persuaded’ temporarily by the interrogators that he has really done the act in question

Question 2

Definition of a Confession

Answer 2

s.82 (1) PACE ‘84 provides a partial definition of a confession thus;
‘…‘confessions’ includes any statement wholly or partially adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’

Question 3

Safeguards regarding confessions

Answer 3

Confessions have to be tape-recorded now, Code E, Code of Practice

Code C, Code of Practice, which governs the detention and questioning of suspects.

Question 4

Admissibility at common law

Answer 4

the admissibility of a confession was governed by the voluntariness test, i.e. had the confession been made voluntarily.

Ibrahim v R [1914] AC 599
Callis v Gunn [1964] 1 QB 495 CCA
DPP v Ping Lin [1976] AC 574

Question 5

Admissibility of confessions-post PACE ‘84

Answer 5

s.76 (1) PACE;
‘In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.’

Question 6

Law of confession

Answer 6

s. 76 (2) PACE ‘84
a. by oppression of the person who made it; or
b. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.’

Question 7

the court is given power to raise the issue and require the prosecution to prove the conditions of admissibility

Answer 7

s.76 (3) PACE ‘84

Question 8

R v Priestly (1965)

Answer 8

‘sapped the accused’s free will’ so that ‘he spoke when otherwise he would have remained silent.’

Question 9

‘intentional infliction…of severe physical or mental pain and suffering by a public official, or by a person acting in an official capacity in the performance…of his official duties.’

Answer 9

s.134 Criminal Justice Act 1988

Question 10

oppression

Answer 10

There must be a causal connection between the oppression and the making of the confession.

There must also be some degree of impropriety by the interrogator for oppression ground to be satisfied.

Question 11

PACE ‘84 gives a partial definition of oppression

Answer 11

s.76(8), namely;
‘In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture

Question 12

Republic of Ireland v UK (1978) 2 E.H.R.R. 25

Answer 12

give the LP of the meaning of oppression

1. wall standing
2. hooding
3. subjection to continuous noise
4. deprivation of sleep
5. deprivation of food/drink

Question 13

R v Fulling [1987] 2 All ER 65

Answer 13

LP that the lying to a suspect would not amount to oppression

Held oppression construed narrowly.

Question 14

R v Paris, Abdullahi, Miller

Answer 14

LP- interviews oppressive because of their, ‘length and tenor

Miller, IQ of 75, questioned over 5 days, interviewed for 13 hours, 19 tapes recorded of interviews.
Miller asked over 300 times did he kill Lynette White-he denied the murder 300 times-then finally confessed.

Question 15

R v Emmerson

Answer 15

LP- officer raised his voice and used some bad language is not oppressive.

Question 16

R v Heaton [1993]

Answer 16

D confessed to manslaughter during a 75 minute interview in presence of his solicitor.
Officers raised voices/repeated questions.
CA-held no oppression;’Perfectly legitimate for officers to pursue the interrogation of a suspect with a view to eliciting his account or gaining admissions. They are not required to give up after the first denial or even after a number of denials.’

Question 17

Mohd Ali Bin Burut v Public Prosecutor

Answer 17

1. the special procedure was inherently oppressive!
2. the statements were obtained by oppression.
   nb-the confessions were not obtained during the special procedure but in a gap between special procedure and signing of written statements.
   Lord Steyn;
   ‘Nothing had happened to remove the implied threat of further sessions subject to the special procedure.’

Question 18

R v Seelig

Answer 18

Held-personal characteristics of D can be considered. Here D was ‘experienced’, ‘intelligent’ and ‘sophisticated

LP- If the PC is taken in to account then court would choice the level of Oppression

Question 19

reliability ground

Answer 19

s.76 (2) (b)-See Lord Lane LCJ in R v Fulling [1987] 2 All ER 65 at p70-a confession may fail to be excluded under para (b) where there is no suspicion of impropriety.

Question 20

R v Goldenberg (1988) 88 Cr App R 285

Answer 20

On appeal-asked for confession to be excluded under s 76 (2) (b)-arguing it was unreliable because it might have been made in the hope of getting bail.

LP- herion addict is unreliable- ‘a causal link must be shown between what was said or done and the subsequent confession.’

Question 21

R v Crampton (1990) 92 Cr App R 369

Answer 21

‘The mere fact that someone is withdrawing, and may have a motive for making a confession, does not mean the confession is necessarily unreliable.’

Question 22

R v Effik (1992) 95 Cr App R 427

Answer 22

only remove in if the confession had been made while he was experiencing acute withdrawal symptoms.

Question 23

R v Walker

Answer 23

Thus any mental or personality disorder could be relevant re; s.76 (2) (b)-it was not limited to classes of case where D had a ‘mental impairment’ or ‘impairment of intelligence or social functioning’ or a very low IQ.

Question 24

R v McGovern (1991) 92 Cr App R 228 CA

Answer 24

Police unlawfully refused her access to a solicitor and breached the recording requirements, (Code E).
In a 2nd interview a day later, with a solicitor present-D made a longer, more detailed/coherent confession

Question 25

anything said or done’, includes an inducement, (at common law)-e.g.

Answer 25

1. holding out the possibility of release or bail-See R v Barry (1992) 95 Cr App R 384
2. suggesting offences could be taken into consideration rather than specifically charged-See R v Phillips (1988) 86 Cr App R 18
3. offering a hope of treatment rather than punishment-See R v Delaney (1988) 88 Cr App R 338 CA.
4. length of detention/number of interviews.

Question 26

the ‘right’ to a solicitor

Answer 26

s.58 (1) PACE ‘84 provides;
‘A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.’
s.58 (4);
a. it will lead to interference/harm to evidence connected to the offence or interference with/physical injury to other people.
b. will alert other people suspected of having committed an offence but not arrested.
c. will hinder the recovery of any property obtained as a result of the offence.
nb-s.58 arguably guarantees due process and upholds the presumption of innocence.

Question 27

the confession may nevertheless still be excluded by the trial judge at his discretion under

Answer 27

s.78 (1) PACE ‘84.
‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.’

Question 28

R v Mason [1988] 1 WLR 139

Answer 28

LJ Watkin-police had, ‘hoodwinked both solicitor and client. That was a most reprehensible thing to do.’

D charged with arson-torching the car of his girlfriend’s father. In an interview, the police told D, and his solicitor that D’s finger prints were found on a broken bottle of petrol. This was a lie. D confessed to the arson and was convicted of arson.

Question 29

R v Walsh (1989) 91 Cr App R 161

Answer 29

D arrested-held in custody in police station.
1. denied access to a solicitor unreasonably.
2. police failed to make contemporaneous notes of interview.
3. breached Code C-interview conducted on a person who asked for but did not receive legal advice.
Held-denial of access to a solicitor contrary to s.58 will prima facie have an adverse effect on the fairness of proceedings but s.78 (1) states, ‘such an adverse effect’-i.e. not all breaches of CoP will have such an adverse effect.

Question 30

R v Keenan [1989] 3 All ER 598 CA

Answer 30

Here Met. Police officers did not keep an accurate contemporaneous record of an interview with D where he confessed to charge of possession of an offensive weapon in a car.
Met officers claimed they did not know about the provisions of CoP C, at time of D’s arrest, and still did not know about them, i.e. 18 months later!

Question 31

Voir dire

Answer 31

Scope of voir dire

1. The prosecution may not cross-examine the D on the voir dire as to the truth of the confession.
   See Wong Kam-Ming v R [1986] AC 247 PC
   nb- remember s.76 (2)-the truth of the confession is immaterial to its admissibility

Question 32

provides additional protection to mentally handicapped suspects who make confessions

Answer 32

nb-s.77 (3) defines ‘mentally handicapped’ as someone;
‘in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning;’

s.77 (1) provides;
‘where at such trial-
(a) the case against the accused depends wholly or substantially on a confession by him; and
(b) the court is satisfied-
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the presence of an independent person the court shall warn the jury that there is special need for caution before convicting the accused in reliance of the confession and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.’

Question 33

Statutory Exceptions (in Criminal Justice Act 2003)

Answer 33

s.116 sets out a number of statutory exceptions to the rule against hearsay evidence to

Question 34

s.116

Answer 34

‘(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.’

Question 35

The 5 conditions in s.116 (2)

Answer 35

(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;’
‘(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken.
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.’

Question 36

‘Fear’

Answer 36

s.116 (3) CJA 2003 provides;
‘(3) For the purposes of subsection (2) (e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or for financial loss.’

Question 37

‘Leave’

Answer 37

(4) Leave may be given under subsection (2) (e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),’

‘(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)(special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
(d) to any other relevant circumstances.’

Question 38

s.116 (5)

Answer 38

‘(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances descried in that paragraph are caused-
(a) by the person in support of whose case it is sought to give the statement in evidence, or
(b) by a person acting on his own behalf,
in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).’

is there to prevent a party from relying on any of the five conditions/grounds in s.116 (2) if that party or someone acting on his behalf has brought the condition/ground about in order to prevent the relevant person from testifying.

Question 39

R v McGillivray [1993] 97 Cr App R 232

Answer 39

statement was made by a victim in a document and was admissible under s.23 CJA 1988, (similar to s.116 (2) (a) CJA 2003.

person is dead

Question 40

The condition here is that the relevant person, (the person who made the statement), is unfit to be a witness because of his bodily or mental condition

Answer 40

s.116 (2) (b)

Question 41

McEwan v DPP (2007) 171 JP 308 DC

Answer 41

held evidence indicating that a medical condition will be made worse by stress, but which did not indicate clearly that the witness was unfit, will not suffice to satisfy s.116 (2) (b) condition.

Question 42

R v Meredith (2007) 171 JP 249 QBD

Answer 42

a doctor’s statement that it would be in the witness’s best interests to submit written testimony was not adequate evidence that the witness was unfit to attend.

s.116 (2) (b)- mental condition

Question 43

R v Case [1991] Crim LR 192

Answer 43

The prosecution were permitted to adduce in evidence the statements of the tourist and her companion under s.23 (2) (b) CJA 1988-i.e. tourist outside the UK and it was not reasonably practicable to secure her attendance.

This had to be proved by the prosecution beyond reasonable doubt by leading evidence

Question 44

R v Bray (1989) 153 JP 11

Answer 44

no effort to secure his attendance at the trial.
Held the statement of the South Korean witness ought not to have been admitted.
Lord Lane LCJ;
‘Since seven months have elapsed since Mr Kim departed for South Korea, it was certainly not shown that it was not reasonably practicable to secure the witness’s attendance.’

Question 45

R v Hurst (1995) 1 Cr App R 82

Answer 45

‘reasonably practicable’ involves normal steps which would be taken to secure the attendance of a witness, and other circumstances such as

a) cost
b) steps which might be available to secure attendance.

Question 46

R v Castillo

Answer 46

Whether a party took reasonable steps to secure attendance depends upon numerous factors-

a) the importance of the evidence
b) the expense and inconvenience of securing attendance
c) the weight of reasons for non-attendance.

Question 47

R v Maloney [1994] Crim LR 525 CA

Answer 47

CA-Held-The term ‘reasonably practicable’ does not mean what is physically possible.

Question 48

Defence relying on s.116 (2) (c)

Answer 48

When the defence seeks to admit a statement under s.23 CJA 1988, (now s.116 (2) (a)-(e)), the defence needs to prove the existence of the conditions on the balance of probabilities.
See R v Mattey & Queeley (1995) Crim LR 308.

Question 49

R v Riat [2013] 1 All ER 349

Answer 49

Hughes LJ in R v Riat above stated;
‘[I]f the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing.’

Question 50

R v Adams [2008] 1 Cr App R 35 CA

Answer 50

Leaving contact with the witness such as this until the last working day before the trial is not good enough.’
The home, or place of work or agency, should have been visited, or at least telephoned.
Held- CA-the statement should not have been admitted under s.116 (2) (d).

Question 51

R v DT [2009] EWCA Crim 1213 CA

Answer 51

There should be a written statement of facts as to the steps taken to locate the witness.
In this case matters had proceeded too informally and the steps taken to locate the witness were not clearly stated. Evidence is necessary.

Question 52

R v Martin [1996] Crim LR 589

Answer 52

CA-Held the words ‘through fear’ should not be qualified in any way. Thus a stranger loitering outside the house may suffice.

Question 53

R v Doherty (2007) 171 JP 79

Answer 53

Here the witness provided written statements that he had received anonymous implicitly threatening telephone calls which appeared connected to the offence he was to testify about.
Held-this suffices to establish fear.

Question 54

R v H [2001] Crim LR 815 CA

Answer 54

Here the victim made a statement 2 months before the trial indicating his fear at reprisals and his intention to move and not testify.
At trial there was no evidence as to whether the witness was still scared-the court simply accepted he was.
Fear had to e judged at the time when the witness would be expected to give evidence orally.

Question 55

R v Acton Justices ex parte McMullen [1991]

Answer 55

Held-No need for it to be proved/shown fear to be genuine and based on reasonable grounds.

Question 56

Neill v North Antrim Magistrates’ Court

Answer 56

ese statements should not have been admitted in evidence-as LJ Mustill argued because the police officers’ evidence was;
‘essentially a third-hand account of the witness’s apprehensions’, and was therefore inadmissible hearsay.

Question 57

R v Davies [2007] 2 All ER 1070

Answer 57

widely construed…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…was designed to avoid.’

Question 58

Business and other documents

Answer 58

s. 117 CJA 2003 is very similar to the earlier exception in s.24 CJA 1988.
s. 117 allows documentary hearsay to be admissible in court if certain requirements are satisfied.

Question 59

s.117 CJA 2003 s1

Answer 59

‘(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if-

(a) oral evidence in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.’

Question 60

s.117 CJA 2003 s2

Answer 60

‘(2) The requirements of this subsection are satisfied if-

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the relevant person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.’

Question 61

s.117 CJA 2003 s3-4

Answer 61

‘(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

(4) The additional requirements of subsection (5) must be satisfied if the statement-
(a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but
(b) was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 (c 32) or under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c 33) (which relate to overseas evidence).’

Question 62

s.117 CJA 2003 s5

Answer 62

‘(5) The requirements of this subsection are satisfied if-

(a) any of the five conditions mentioned in section 116 (2) is satisfied (absence of relevant person etc), or
(b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances

Question 63

s.117 CJA 2003 s6-7

Answer 63

‘(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection

(7) The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of-
(a) its contents,
(b) the source of the information contained in it,
(c) the way in which or the circumstances in which the information was supplied or received, or
(d) the way in which or the circumstances in which the document concerned was created or received.’

Question 64

Maher v DPP [2006] EWHC 1271 (Admin),

Answer 64

Held in the Administrative Court, that the Police Incident Log was inadmissible in evidence under s.117 to establish the identity of the offending car, because s.117 (2) (c) was not satisfied.

Question 65

R v Horncastle [2010] 2 AC 373 CA

Answer 65

‘business records are made admissible by s.117… because…they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable…and the court is not to admit them if there is doubt about their reliability.’

Question 66

2. Also s.125 (1) CJA 2003 provides;

Answer 66

(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers

Question 67

Competence

Answer 67

A witness is competent if it is lawful to call him to give evidence.

Question 68

Compellability

Answer 68

A witness is compellable if he may be compelled or forced under threat of legal sanctions or punishment by a court to give evidence.

Question 69

Securing witness attendance

Answer 69

a) Civil cases-a party may subpoena another person to attend as a witness.
b) Criminal cases-attendance of a witness is achieved in the Magistrate’s Court by serving a witness summons.

Question 70

Basic rule

Answer 70

All witnesses are both competent and compellable.
Why?- To make available all evidence to the court which is relevant and admissible.
The modern trend increasingly is to make available evidence where possible, (and relevant/admissible), and getting away from or at least restricting the number of categories of witness where there are problems with competence and compellability.

Question 71

Hoskyn v Metropolitan Police Commissioner [1979] AC 474

Answer 71

First, in principle, anyone who is a competent witness is a compellable witness…this general rule is a constitutional principle underlying our whole system of justice.’

Question 72

s.53(1) of the Youth Justice and Criminal Evidence Act 1999,

Answer 72

‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’

Question 73

Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 CA

Answer 73

here-there is no property in a witness.

i.e. A witness does not ‘belong’ to a party calling them.

Question 74

a) Historical fear

Answer 74

manufactured/concocted/exaggerated evidence from witnesses who have a vested interest in creating or inflating the significance of their evidence.
nb-Sir Rupert Cross-‘the great pathological dread’ of judges of ‘concocted’ and ‘manufactured’ evidence.

Question 75

s.54 YJ&CE 1999 sets out the procedure generally for determining competence;

Answer 75

‘(1) Any question whether a witness is competent whether raised-
(a) by a party to the proceedings, or
b) by the court of its own motion,
shall be determined by the court in accordance with this section.’
The court/judge therefore basically decides if a witness is competent.

Question 76

s54

Answer 76

‘(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence.’
and
‘(3) In determining the question the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give

Question 77

s.54(4) YJ&CE 1999 provides;

Answer 77

‘Any proceedings held for determining the question shall take place in the absence of the jury (if there is one).’-a voir dire basically.
Also;
‘(5) Expert evidence may be received on the question.’
Finally, ‘(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.’

Question 78

1. The Defendant, (D)

Answer 78

s.53 (4) YJ&CE 1999 provides;
‘A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).’
Axiomatically if D is incompetent for the prosecution he is also not compellable for the prosecution.

Question 79

The accused’s spouse

Answer 79

As stated earlier historically up until the Hoskyn case in 1979 the courts did not favour spouses being competent/compellable to give evidence against their fellow spouse, (the D).
However, under s.53(1) YC&CE 1999, all persons, including the spouse of the D, are now competent witnesses.

Question 80

general Accused

Answer 80

The accused’s spouse is generally not compellable for the prosecution.
However under s.80 (2A) (b) of PACE 1984 a spouse or civil partner is compellable if it is a specified offence.

Question 81

s.84 Civil Partnership Act 2004;

Answer 81

‘(1) Any law relating to the giving of evidence by a spouse applies in relation to a civil partner as it applies in relation to the spouse.’

Question 82

s.80(3) PACE 1984

Answer 82

‘In relation to the [spouse or civil partner] of a person charged, an offence is a specified offence for the purposes of subsection (2A) above if-

(a) it involves an assault on, or injury or a threat of injury to, the [spouse or civil partner] or a person who was at the material time under the age of 16;
(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within (a) or (b) above

Question 83

specified offences

Answer 83

spouse may be the only witness if she is the victim or the victim is under 16.
It is sensible that the law should force her to give evidence and not have to make her choose to give evidence

Question 84

R(CPS) v Registrar General of Births, Deaths & Marriages [2003] QB 1222 CA

Answer 84

wife cannot be CPS witness

Question 85

R v Khan (1987) 84 Cr App Rep 84 (CA)

Answer 85

In the latter case the D had married a woman in England and sought to rely on the general non-compellability of spouses re; his wife giving evidence in England, but he had never divorced his first wife in Pakistan who was still alive, so his 2nd English marriage was bigamous-hence his 2nd ‘wife’ could give evidence against Khan as they were never lawfully married.

Meaning spouse

Question 86

Moss v Moss [1963] 2 QB 799 DC

Answer 86

‘It is clear that there is an essential difference between a decree absolute for divorce and a decree for judicial separation…The decree absolute for divorce terminates the marriage; the decree for judicial separation does not, and, therefore, the spouses still remain husband and wife.’

Question 87

s.80(5) PACE 1984

Answer 87

‘A person who has been but is no longer married to the accused shall be compellable as if never married.’

Question 88

s.80(5A) PACE 1984;

Answer 88

‘A person who has been but is no longer the civil partner of the accused shall be compellable as if never civil partners.’

Question 89

The Co-accused

Answer 89

What is the position re; competence of the D for the prosecution where D is no longer liable to conviction?

Question 90

s. 53(5) YJ&CE 1999 provides;

Answer 90

‘A person charged does not include a person no longer liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).’

Question 91

. What is meant by ‘no longer liable to be convicted of any offence in the proceedings’? When will that happen?

Answer 91

4 scenarios;

1. D is acquitted
2. D enters a guilty plea.
3. A nolle prosequi is entered by the Attorney General.
4. The indictment is severed, (i.e. Co-accused and D get separate trials.

Question 92

R v McEwan [2011] EWCA Crim 1026 CA

Answer 92

‘if a person pleads guilty…he is no longer incompetent to give evidence for the prosecution against others charged.’

Question 93

Children

Answer 93

As stated earlier historically evidence from children was treated with great circumspection/suspicion.
Their evidence was viewed as innately unreliable.

Question 94

s.53 (1) YJ&CE 1999 provides;

Answer 94

‘All persons whatever their age, are competent.
However this general rule will not apply and a witness, (usually possibly a child or a person with learning difficulties), will not be competent to testify if it appears to the court that he is unable to give intelligible testimony.

Question 95

s.53(3) YJ&CE 1999

Answer 95

‘A person is not competent if it appears that they are not able (a) to understand questions put to them as a witness and (b) give answers which can be understood.
Hence to give intelligible testimony and be competent, a child must be able to understand questions put to him as a witness and secondly the child must be able to give answers to those questions which can be understood.

Question 96

s.54

Answer 96

(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings’
‘(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
(5) Expert evidence may be received on the question.
(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.’

Question 97

R v MacPherson[2005] EWCA Crim 3605, [2006] 1 Cr App R 30

Answer 97

a)-‘In the ordinary way [the] issue should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial.’
b)-‘the issue…is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness’s answers?’
c)-‘the words ‘‘put to him as a witness’’ means the equivalent of being ‘‘asked of him in court’’. So, it would be the case that an infant who can only communicate in baby
d)-‘there is no requirement in the Act (which is commendably clear in its language) that the witness in question should be aware of his status as a witness. Questions of credibility and reliability are not relevant to competence. Those matters go to the weight of the evidence and might be considered, if appropriate, at the end of the prosecution case, by way of a submission of no case to answer.’
e) Finally and arguably crucially the Court of Appeal held, ‘a child should not be found incompetent on the basis of age alone and the question of competence can be kept under review.’
Thus a child should not be assumed/deemed incompetent ‘on the basis of age alone’.
language with its mother would not ordinarily be competent. But a young child…who can speak and understand basic English with strangers would be competent.’

Question 98

R v Wallwork (1958)

Answer 98

See the old approach to child competency-per Lord Goddard LCJ- ‘most undesirable’ to call a 5 year old to give evidence.

Question 99

R v Wright (1987)

Answer 99

Ognall J- must require quite exceptional grounds to justify the reception of this evidence.

Question 100

R v Hampshire [1995] 2 All ER 1019 CA

Answer 100

1. The competency assessment/investigation should be conducted at the earliest moment-not after the child gives his evidence.
2. The judge conducts the investigation-he discovers the competence of the child in ‘ordinary discourse’-not cross-examination. It is a matter of his perception of the child’s understanding.
3. If the child is video-recorded under the equivalent of s.19 YJ&CE 1999-the judge’s pre-trial view of the recording-should help the judge to determine the child’s competence.
4. The assessment of competence is carried out in open court, in presence of D, but not the jury. The jury decides the weight but the judge decides the competency, (admissibility), of the child’s testimony.

Question 101

1. understands the questions put to him
2. can communicate
3. can give a coherent and comprehensible account in response to questions
4. can distinguish between truth and fiction and/or between fact and fantasy,
   but no need to have an ability to distinguish between truth and lies since
   a) child, (under 14), does not have to take an oath
   b) because lies are, after all, intentional deliberate falsehoods, (i.e. child must, if lying, be able to tell the difference between lies and the truth).

Answer 101

See also R v D(1995)

Question 102

Unsworn evidence

Answer 102

In criminal proceedings a witness under the age of 14 cannot be sworn and must give unsworn evidence if they satisfy the competency/intelligible testimony test-(see s.55(2) (a) YJ&CE 1999).
A child who has reached the age of 14 can be sworn, i.e. give sworn testimony/evidence in court if, ‘he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.’(see s.55(2) (b) YJ&CE 1999).
Finally under s.55(3) YJ&CE 1999-a witness who is able to give intelligible testimony is to ‘be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party)’.

Question 103

R v Bellamy(1986) 82 Cr App R 222

Answer 103

Here the issue was whether a victim of rape, who was suffering from a mental disability, was competent to give evidence.
The Court of Appeal, following R v Hayes held that no enquiry need be made into the religious belief of the witness.
It was sufficient if the judge found that a witness possesses sufficient understanding of the duty to speak the truth in the context of court proceedings.
Essentially the matter is one for the judge, who must determine if this witness has sufficient capacity to give evidence.

Question 104

R v B[2010] EWCA Crim 4 CA

Answer 104

‘These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They apply to the infirm. The question in each case is whether the individual witness…is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions

Question 105

DPP v Hester (1973) AC 296 at p315 HL;

Answer 105

‘Any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness.’

Question 106

General Rule-England/Wales

Answer 106

1. No requirement that evidence be corroborated.
2. Secondly-no requirement to give a full corroboration warning, i.e. that the tribunal of fact be warned of the danger of acting on uncorroborated evidence.

Question 107

Exceptions to the General Rule

Answer 107

1. Where corroboration is required as a matter of law.
2. Cases where in appropriate circumstances the tribunal of fact should be warned to exercise caution before acting on the evidence of certain witnesses if unsupported.
3. a) Confessions by mentally handicapped people-See s.77 PACE 1984.
   b) Identification evidence-See R v Turnbull warning.

Question 108

Meaning of corroboration

Answer 108

In its ordinary sense corroboration means evidence that confirms or supports other evidence but in its technical sense, in order to be corroborative, evidence must be;

1. Relevant
2. Admissible-(i.e. not excluded by an exception).
3. Credible-See Lord Hailsham in DPP v Kilbourne (1973) AC 729 at p746-‘Corroboration can only be afforded…by a witness who is otherwise to be believed.’
4. Independent
5. Evidence which implicates D in commission of offence-that he did it-as e.g. required by statute.

Question 109

Independent

Answer 109

In order to be independent- the evidence must come from a source other than the witness to be corroborated.

Question 110

R v Whitehead (1929) 1 KB 99 CCA-

Answer 110

involved a sexual assault on V allegedly by D. V complained to her mother shortly afterwards about the assault.
Held this victim’s recent complaint to her mother was not corroboration of her evidence against D.

Question 111

R v Redpath (1962) 46 Cr App R 319 CCA

Answer 111

Here an independent witness testified that V had cried out and run away shortly after the indecent assault.
Held if the jury could discount that the V was putting on an act/simulating distress/feigning distress this evidence could be corroborative.

Question 112

R v Chauhan (1981) 73 Cr App R 232 CA

Answer 112

Here an independent witness testified that V had cried out and run away shortly after the indecent assault.
Held-if the jury could discount the distress being feigned/put on/an act it could corroborate.

Question 113

R v Romeo[2004] 1 Cr App R 30

Answer 113

The CA held the jury must be warned that there is a very real danger that distress may be feigned in appropriate cases.

Question 114

R v Zala[2014] EWCA Crim 2181CA

Answer 114

(i) V’s own evidence as to her distress is not independent evidence and cannot constitute supportive evidence;
(ii) evidence of others as to distress immediately after the incident may be supportive evidence but the judge should look at the circumstances of each case and tailor the directions to the facts, emphasising to the jury the need before they act on it to make sure the distress was not feigned and drawing to their attention factors that may affect the weight to be given to the evidence; and
(iii) evidence of others as to distress some considerable time after the alleged incident may be inadmissible because of no assistance as to who is telling the truth.

Question 115

R v Hills (1988) Cr App R 26 CA

Answer 115

CA stated obiter-a combination of evidence may corroborate-e.g. medical evidence shows intercourse, witnesses may prove D was present, there may be injuries.

Question 116

Evidence must implicate D in offence charged

Answer 116

The evidence to amount to corroboration must confirm not only the commission of the offence but that D did it.

Question 117

R v Baskerville (1916) 2 KB 658

Answer 117

‘Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.’

This is the classic definition of corroboration in its strict sense.

Question 118

Implicating D

Answer 118

Corroborative evidence does not have to confirm all the circumstances of the crime.

Question 119

Cracknell v Smith (1960) All ER 596

Answer 119

This was an affiliation case-evidence from mother of V that D visited mother’s home to see complainant, (V), at about the relevant period and met her at the corner of the street on various occasions.
Held this was not corroborative evidence.
It was only evidence of opportunity.
It did not implicate D with having sex with V.

Question 120

R v James (1970) 55 Cr App R 299, PC

Answer 120

A rape case-medical evidence adduced showing V had sex.
Held this was not corroborative evidence-all it proved was that V had sex at the time-it did not confirm D had raped V, or confirm a lack of consent on her part to sex.

Question 121

Corroboration warnings-the old law

Answer 121

Up till January 1995, a trial judge had to give a full corroboration warning to the jury if the witness was either;
a) a complainant in a sexual offence/case
b) an accomplice.
NB-This mandatory warning was scrapped by s.32 (1) CJ&POA 1994

Question 122

Corroboration warnings-the old law

Answer 122

The full corroboration warning that the trial judge had to give the jury effectively comprised;

1. The warning that it was dangerous to convict on the uncorroborated evidence of e.g. accomplice/complainant in sex offence.
2. An explanation of the technical meaning of corroboration-(see previous discussion).
3. The judge had to indicate to the jury what evidence was and was not capable of corroborating as a matter of law.
4. An explanation that the jury determined, ultimately as a matter of fact, whether that evidence did corroborate.
5. That the jury, (confusingly?!), could nonetheless convict D despite the fact there was no corroboration/corroborative evidence.

Question 123

Criticisms of full corroboration warnings

Answer 123

1. They were confusing for the jury, i.e. it was surely contradictory to warn the jury of the dangers of convicting on uncorroborated evidence and at the same time saying they could still nonetheless convict!!
2. Very complex.
3. A ‘straitjacket’. Trial judge a ‘Pavlovian dog’-if witness a complainant in sex case/offence or an accomplice warning obligatory and automatic regardless of the particular witness, i.e. it was an incredibly blunt and insensitive tool-‘one size fits all’!
4. Sex victims were unlikely to have corroboration due to the nature of the offence.
5. Paradoxically there was some evidence, (See the Law Commission Working Paper No 115, at paras. 2.9 and 2.18),

Question 124

Why give full corroboration warnings?

Answer 124

a) In sex cases-the argument was that allegations were easy to make but hard to rebut.
Complainants in sex cases might complain falsely because of shame, fantasy, neurosis, spite etc;

b) accomplices-may have their own interest to serve, do it for financial/other reward, decrease the extent of their own guilt by increasing the guilt of other alleged parties.

Question 125

Exceptions to the general rule

Answer 125

1. Where there must be corroboration before a conviction.
   There are 3 situations where corroboration is needed/required before a conviction can be secured.
2. Speeding
3. Perjury
4. Attempts (at 1-2 above).

Question 126

Speeding

Answer 126

NB-Opinion evidence of non-experts generally inadmissible but exception to this opinion evidence re; speeding.
See s.89 (2) Road Traffic Regulation Act 1984-persons charged with speeding-
‘shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.’

Question 127

Brightly v Pearson (1983) 4 All ER

Answer 127

The evidence of the 2 witnesses must relate to the speed of the vehicle at the same place and time.

Question 128

s.89 (2)

Answer 128

applies only to opinion evidence-not to evidence of fact

Question 129

Nicholas v Penny (1950) 2 KB 466

Answer 129

Held-Magistrates could convict D on evidence of a police officer who had checked D’s vehicle speed from the speedometer of his own police car which was driven at an even distance behind D’s car.
nb-Speedometers, radar guns, radar speed meters are presumed to be accurate.

Question 130

Crossland v DPP (1988) 3 All ER 712

Answer 130

Here an expert in accident reconstruction testified he had inspected the scene of an RTA, including skid marks and damage to D’s car, carried out speed and braking tests on the car and calculated its speed had not been less than 41 mph.
Held-this was not solely the opinion evidence of one witness-the expert had also described the objectively determined phenomena on which they were based.

Question 131

Criminal Law Revision Committee 11th Report (Cmnd 4991), paras 178-190

Answer 131

The Report stated that to make a prosecution for perjury too easy might discourage persons from giving evidence and create the danger of a successful party to litigation whose evidence was believed to prosecute his opponent, or his opponent’s witnesses for perjury.

Question 132

s.13 Perjury Act 1911

Answer 132

‘A person shall not be liable to be convicted of any offence against this Act, or of any other offence by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.’

Question 133

Perjury includes;

Answer 133

a) perjury in judicial proceedings

b) making false statements on oath in statutory declarations etc;.

Question 134

R v Peach (1990) 2 All ER 966 CA

Answer 134

Here 2 witnesses testified to having heard D admit the falsity of the statement on the same occasion

Question 135

s.2 (2) (g) of the Criminal Attempts Act 1981 provides;

Answer 135

‘Any provision whereby a person may not be convicted or committed for trial on the uncorroborated evidence of one witness (including any provision requiring the evidence of not less than two credible witnesses) shall have effect with respect to an offence under s.1 of the Act of attempting to commit an offence as it has effect with respect to the offence attempted.’

Question 136

Old law-(pre 1st January 1995 and the CJ&POA1994).

Answer 136

As stated already, up till January 1995 if a witness was’
i) a complainant in a sex case-the V, or
ii) an accomplice
a full corroboration warning had to be given as a matter of law by the trial judge to the jury, (i.e. a mandatory/obligatory warning), regarding that witness.

Question 137

Meaning of accomplices?

Davies v DPP (1954) AC 378 HL

Answer 137

Accomplices were;

a) Parties to the offence in question.
b) Handlers of stolen goods-in cases of thieves from whom they receive, on the trial of the thief for theft.
c) Parties to another offence committed by D in respect of which evidence is admitted under the similar fact doctrine.

Question 138

s.32 (1) CJ&POA1994

Answer 138

scrapped the full obligatory/mandatory corroboration warning being given where the witness was ‘merely’ an accomplice or complainant in a sex case/offence.
But the trial judge now has a discretion to give some form of warning wherever he considers it necessary to do so.

Question 139

R v Makanjuola

Answer 139

Facts-D, aged 29, convicted of indecent assault-imprisoned-6 months.
D indecently assaulted Emma Lilley, aged 17, by squeezing her breasts when they were alone together in the storeroom of a McDonald’s store in Epsom, where they oth worked.

Question 140

R v Makanjuola

Answer 140

a) Accomplices/complainants in sex cases no longer presumptively unreliable.
b) No need to give full corroboration warnings on a discretionary basis-that would be contrary to the policy and purpose of the Act.

Question 141

s.32 (1)

Answer 141

abrogated the requirement to give a corroboration warning re; an accomplice and complainant in a sex case, simply, (‘merely’), because W is in one of those categories.
2. It is a matter for the judge’s discretion what if any warning he considers appropriate in respect of such a witness, ‘as indeed in respect of any other witness in whatever type of case.’

Question 142

Guidelines

Answer 142

3. Whether he chooses to give a warning and in what terms will depend on;
   a) the circumstances of the case
   b) the issues raised
   c) the content and quality of the witness’s evidence.
4. In some cases it may be appropriate for a judge to warn the jury to exercise caution before acting on the unsupported evidence of a witness. This will not be merely because witness is an accomplice/complainant in a sex case.
5. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable-an evidential basis does not include mere suggestion by cross-examining counsel.
6. If judge needs to give a special warning re; a witness-this should be resolved by discussion with counsel in the absence of the jury before final speeches.
7. If the judge does give a warning-it should be part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.
8. Where some warning is required-it will be for the judge to decide the strength and terms of the warning-‘it does not have to be invested with the whole florid regime of the old corroboration rules.
9. ‘Attempts to re-impose the straitjackets of the old corroboration rules are strongly to be deprecated.’
10. The court will be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where the exercise is unreasonable in the Wednesday sense.’

Question 143

R v Muncaster [1999] Crim LR 409 CA

Answer 143

CA Held following R v Makanjuola-whether a warning is given and, if so, its strength, is down to judicial discretion and depends on the circumstances

Question 144

R v B (MT) [2000] Crim LR 181 CA

Answer 144

Here D appealed conviction on basis trial judge erred, i.e. had failed to ID which evidence was and was not capable of amounting to supporting evidence.
Held CA-appeal allowed-conviction quashed
CA-Held-Trial judge had a wide discretion to give a modified corroboration warning, but once it was given it was incumbent on the trial judge to ID any independent supporting evidence which existed. The jury needed careful direction here.

Question 145

R v Blasiak [2010] EWCA Crim 2620 CA

Answer 145

Here the CA re-iterated that no form of set words are required for the care warning, (unlike the old full corroboration warning).
R v Burrows [2000] Crim LR 48
At trial-prosecution contended D and another accused, (R), were in joint control of capsules containing 1.6 gms. of crack cocaine in each capsule and other items, (i.e. a mobile drug dealer’s kit).
Both D’s ran cut-throat defences. Both were convicted-possession of a class A drug with intent to supply-penalty-30 months in Young Offender’s Institution. D appealed.
Held-CA-appeal dismissed-trial judge did underline the extreme care with which the jury should approach the allegations against each D-thus, CA could see no lack of safety in verdict.

Question 146

. R v Beck [1982] All ER 807 CA

Answer 146

CA-Held-Trial judge obliged to warn/advise the jury to proceed cautiously where material suggested evidence might be tainted by an improper motive, but was not obliged to give an accomplice warning, as the witness was not a participant and not in any way involved in the crime the subject of the trial.

Question 147

R v Cheema [1994] 1 All ER 639 CA

Answer 147

A co-accused giving evidence on his own behalf.

The judge should warn the jury to exercise caution because they may have an interest to serve.

Question 148

R v Spencer [1987] AC 128 HL

Answer 148

greatest caution and to examine it with the greatest care. He reminded the jury of the dangers involved;

1. The patients’ mental illness at the time.
2. Their convictions for serious crimes.
3. Medical evidence that they suffered from delusions and had a tendency to lie or exaggerate.
4. The risk that they might have conspired together to bring false accusations.

Question 149

R v Stone [2005] Crim LR 569

Answer 149

Trial judge may point out that cell confessions may be easy to concoct and difficult to disprove and that experience has shown prisoners may have motives to lie.
If the informant witness has a criminal record or history of lying this should be pointed out.