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Flashcards in LG1 + Week 5 Materials Deck (66):

Facts in issue:

Facts in issue are the facts a party must prove in order to succeed at trial, namely the identity of the suspect and the elements of the offence with which the defendant is charged.





Admissibility: Whether the evidence as a matter of law may be adduced at trial. (law)

Relevance: the extent to which evidence in question is capable, as a matter of common sense and experience, of tending to prove or disprove a fact in issue. (logic)

Weight: the extent to which a fact-finder believes that the evidence in fact proves or disproves that fact in issue i.e. its persuasiveness. (opinion)


Exclusionary rules

The law of evidence contains a large number of exclusionary rules that prevent the reception of otherwise admissible evidence. The rules of evidence are thus primarily concerned with excluding otherwise admissible evidence eg, opinion, bad character, legal privilege etc. Notwithstanding that it is relevant, evidence may still be ruled inadmissible because it falls foul of one of the rules of evidence. The rules of evidence are thus concerned with excluding otherwise admissible evidence.


Inclusionary Discretion

There is no general inclusionary discretion in criminal proceedings, but CJA 2003, s.114(1)(d) – admitting evidence of hearsay in the interests of justice- is an inclusionary discretion).


Exclusionary discretion

In criminal cases, the judge has discretion to exclude
evidence more prejudicial than probative (common law);
evidence of confession/admission or evidence obtained from the accused after the commission of the offence that has been obtained by improper or unfair means (common law);
evidence that would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (section 78 PACE 1984).
N.B. discretion means that the judge has a certain degree of flexibility in how he applies a particular standard to the facts before him. However, once he concludes that the standard is satisfied on the facts he must exclude the evidence concerned.


What is the difference between the tribunal of fact and the tribunal of law?


Mags Ct

One determines facts of the case, the other decides the law.

Crown Court: Spilt roles.
Fact – jury.
Law – Judge.

(ii) Magistrates Court:
Fact & Law – combined roles- magistrate (lay magistrates or district judge).


In a criminal trial, who determines (i) the admissibility of evidence, and (ii) the weight of evidence- is it the tribunal of fact or the tribunal of law?

Depends on venue.
Admissibility of evidence is for tribunal of LAW.
In CC, this is judge. In Mags, this is the Mags or DJ.
Weight of evidence is for the tribunal of FACT, as they evaluate how much importance the evidence has in proving/disproving a fact.
In CC, this is for jury. In mags, it will be Mags/ DJ again.


What are ‘preliminary facts’?

Collateral facts:

Preliminary facts are a form of collateral fact. Collateral facts do not directly prove a fact in issue, nor are they facts from which the existence of a fact in issue may be inferred. Instead, they are facts which affect the admissibility of or the weight of evidence going to a fact in issue.

There are two categories of collateral fact
• facts affecting the weight of other evidence e.g. evidence affecting the credibility of a witness; and
• facts affecting the reception of other evidence (sometimes known as preliminary facts).

Preliminary facts must first be established before other evidence can be adduced. An example is a confession by the D in police interview. If this is raised as unreliable under s76 PACE 1984, the pros must first prove it was not so obtained before the court will admit the confession at trial.


Direct evidence

Real evidence

Direct evidence is essentially evidence that speaks for itself in proving the fact in issue,
whereas circumstantial evidence requires an inference to be drawn.

Real evidence is simply a tangible item, e.g. an item of clothing, a knife, etc.


R v Smith Q1

Facts in issue: identity of D & all elements of offence of theft.
Direct evidence: any evidence from which no inference need be drawn in order to prove or disprove guilt.
Example: confession.
Circumstantial evidence: evidence from inferences must be drawn to prove or disprove guilt.
Examples: coat with false pocket, suspicious behaviour- inference of dishonesty.
Collateral facts: facts which are relevant to collateral issues and do not directly prove or disprove facts in issue.
Examples: facts relating to weight such as motive and facts relating to the reception into evidence of other evidence, such as oppression used to obtain a confession


Admission pursuant to

Admission Pursuant to section 10 of the Criminal Justice Act 1967


s9 Criminal Justice Act 1967

Allows a witness statement to be adduced as evidence, rather than calling the maker of the statement.

s9 statements are not to be taken as conclusively true (unlike s10). They are ‘admissible as evidence to the like extent as oral evidence to the like effect by that person” (s9(1)).

Must be signed by the maker s9(2)(a)

Must contain a declaration of truth (s9(2)(b)

See BCP 2015 D22.38


Facts in issue


Facts in issue: the facts a party must prove in order to succeed at trial. In a criminal case these are the identity of accused and all the elements of the offence with which he is charged and any facts the defendant must prove if he is to succeed in a defence in respect of which he bears a legal burden.

Evidence: any fact which tends to prove or disprove a fact.



Formal admissions

Proof: the establishment of facts in issue by proper legal means to the satisfaction of the court (see definition in Phipson on Evidence).

Formal admissions: see Criminal Justice Act 1967, s 10. A party may admit any fact of which oral evidence might be given. The admission must be of a fact relevant to an issue and will be in writing, on a signed document and put before the jury.


Law of evidence



Law of evidence: body of rules, principles and discretions which determine whether a particular fact may be admitted as evidence.

Admissibility: whether a piece of evidence is ‘acceptable’/can be received into evidence. It must be relevant and not be excluded under an exclusionary rule or discretion.

Relevance: evidence is relevant if it is logically probative or disprobative of a fact in issue. In deciding whether something is relevant, ask the questions, ‘could the evidence properly influence the decision of the tribunal of fact on a particular point?’


Evidence is relevant if...

DPP v Kilbourne

Sufficiency of relevance

“ Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say… that relevant evidence is evidence which makes the matter more or less probable” Lord Simon DPP v Kilbourne [1973] AC 729

Sufficiency of relevance: there are degrees of relevance. Evidence of marginal or minimal relevance may be excluded as it carries so little probative value. It would simply distract the fact finder from the main issues.


Exclusionary rules:

...prevent the admission of otherwise admissible evidence. Exclusion is mandatory if the rule applies. Example- rule against hearsay is an exclusionary rule (but subject to numerous exceptions), exclusion of confessions obtained by oppression or something said or done which is likely to render it unreliable (PACE 1984, s 76(2)(a)&(b))


Exclusionary discretion

Exclusionary discretion: exclusion not mandatory, but may occur by the exercise of judicial discretion. Examples: discretion to exclude evidence which is more prejudicial than probative (common law), confession evidence obtained by improper or unfair means after the commission of the offence (common law), evidence that would have such an adverse effect on the fairness of the trial that it ought not to be admitted (PACE 1984, s 78; see also CJA 2003, s 101(3) in respect of bad character evidence).


Inclusionary discretion


Inclusionary discretion: generally, no inclusionary discretion in the law of evidence, but note CJA s 114(1)(d)- an inclusionary discretion to admit hearsay evidence in the interests of justice.

Weight: evaluation of evidence by fact finder. A judgment about the extent to which the evidence proves or disproves a fact in issue. Not strictly logical- may be a subjective reaction by fact finders.


Direct evidence

Circumstantial evidence

Collateral facts

Direct evidence: speaks for itself in proving a fact in proving a fact in issue. No inference needs to be drawn. Eg evidence of an identifying witness that he saw D, who he knew, commit the crime.
Circumstantial evidence: inference is drawn to prove the existence of another fact in issue. Eg murder weapon with accused’s fingerprint.
Collateral facts: facts which affect (i) the admissibility/reception of evidence (eg evidence of oppression in relation to a confession, or evidence on the issue of whether a witness is competent; these collateral facts are also referred to as ‘preliminary facts’) or (ii) the weight of evidence (eg credibility). Such facts do not directly prove a fact in issue, nor or they facts from which the existence of another fact in issue may be inferred.


Tribunal of law and of fact

On trial on indictment, matters of law are for the judge and questions of fact are for the jury. Where a judge sits without a jury in a trial on indictment, obviously the judge is the tribunal of fact and law. This is also the situation in the magistrates’ court, where the lay bench or district judge are tribunals of fact and law.
Examples of questions of law to be considered by the judge: fitness to plead, challenges to jurors, discharging the jury or a juror, competence, the admissibility of evidence, the withdrawal of an issue from the jury (eg self defence or loss of control), submissions of no case to answer, jury directions, bail, costs, leave to appeal, questions relating to the law in a foreign jurisdiction (see Administration of Justice Act 1920, s 15).
Examples of questions of fact: whether D is genuinely standing mute; credibility and weight; the existence or non-existence of a fact, applying the burden and standard of proof.


Legal burden & evidential burden

Legal burden: obligation to prove a fact in issue to the appropriate standard of proof.
Evidential burden: obligation to adduce sufficient evidence on a fact(s) in issue to satisfy the judge that such issue should be considered by the tribunal of fact. Sometimes referred to ‘as getting past the judge’.
In a criminal case Jury (DJ/Bench in the mags court) decide whether the legal burden is discharged, and judge decides on the evidential burden.
Raising issues about evidential burden in a trial: applications to dismiss, submissions of no case to answer at the end of the prosecution case, court raises of own volition.


Standard of proof

General rule: in a criminal case, the burden to prove all elements of offence is on prosecution (Woolmington v DPP [1935] AC 462). Upholds presumption of innocence.
Standard of proof where the prosecution bear the burden- sure
Crown Court Bench Book
“The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure the defendant is guilty. Further explanation is unwise.
If the jury are not sure they must find the defendant not guilty”
See also R v Majid [2009] EWCA Crim 2563


Burden on the defence - evidential

Evidential burden in respect of common law defences of self defence, duress, insane automatism and intoxication. Also in respect of certain statutory defences, such as loss of control (see Coroners and Justice Act 2009, s 54).
The evidential burden means that D must adduce sufficient evidence to raise the defence (‘get past the judge’). If the burden is discharged then the prosecution bear the legal burden of disproving the defence to the standard of sure. If the evidential burden born by D in respect of a defence is not discharged, the judge will rule as a matter of law that the defence is not open to D.


Burden on defence 2

Statute has sometimes sought to impose a legal burden on D, called a ‘reverse burden’ in evidence (eg Homicide Act 1957, s 2(2), in respect of the defence of diminished responsibility). Standard is balance of probabilities. An issue arises as to whether such burdens are compatible with ECHR, Article 6: part of the right to a fair trial is presumption of innocence.
Courts approach the issue on a case by case basis and where a legal burden on defence is found to be in breach of Article 6, it will be read down so as to impose only an evidential burden.
In deciding the issue, the courts apply the principles set down in AG Ref (No 4 of 2002) [2005] 1 AC 264


AG Ref (No 4 of 2002) [2005] 1 AC 264

Must be a compelling reason for denying D protection from normal standard of presumption of innocence
Courts should consider seriousness of punishment on conviction
Should consider the nature & extent of factual matters required to be proved by D and their importance relative to what prosecution has to prove
Should consider how difficult it is for D to prove matters- are matters readily within D’s knowledge
Should consider how pressing the social problem is, which the legislation is seeking to remedy.


Express & implied statutory exceptions


The statute expressly places the burden of proving the defence on D by use of phrases such as, ‘the proof whereof shall lie on him” (see, in relation to offence of possessing an offensive weapon in a public place, Prevention of Crime Act 1953, s 1(1), the defence of lawful authority or reasonable excuse).


Implied statutory exceptions

The burden to prove the defence is not expressly stated, but is implied by the wording of the statute which includes exceptions, provisos, excuses, exemptions, and qualifications (eg words such as ‘unless’, ‘provided that’, ‘except’, ‘otherwise than in accordance with’ are used).
In relation to summary proceedings, see the Magistrates’ Courts Act 1980, s 101: where D relies on an exception, exemption, proviso etc, “…the burden of proving the exception, exemption, proviso [etc]…shall be on him”
Implied statutory exceptions impose a legal burden unless incompatible with Article 6 and read down.



Competence & compellability
Sworn & unsworn evidence
Rules relating to examination-in-chief of witnesses, including questioning, memory refreshing, previous statements, hostile witnesses
Rules relating to cross-examination, including leading questions, putting inconsistent statements, rule of finality, restrictions on cross-examination in sexual cases.
Special measures
Principles and procedure in relation to special measures


Competence and compellabilty

Youth Justice & Criminal Evidence Act 1999, s53(1):
“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence”
S 53(3):“ A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not able to understand questions put and give answers which can be understood.”
S 53(4) a person charged in criminal proceedings is not competent to give evidence for the prosecution.


Competence - procedure

Issue may be raised by a party in the proceedings or the court.
Once raised by a party or if the issue of competence becomes apparent to the judge, the judge is bound to investigate
Youth Justice & Criminal Evidence Act 1999, s 54(2) places the burden on the party calling the witness to establish competence on the balance of probabilities.
S 54(4): the issue is addressed in the absence of the jury
S54(5): expert evidence may be called
S54(6): any necessary questioning of the witness should take place in the presence of the parties.



Accused- competent to give evidence on his own behalf, but not compellable. Competent for co-accused but not compellable whilst charged in the proceedings (see Criminal Evidence Act 1898, s 1(1)).

Spouse or civil partner of accused- competent and compellable for accused and generally not compellable for prosecution or co-accused. However, will be compellable for the prosecution or co-accused to give evidence against the accused or any co-accused in respect of a specified offence (see PACE 1984, (s2A)(a)).


Issue of a witness summons and warrant of arrest

Crown Court:
Criminal Procedure (Attendance of Witnesses) Act 1965
S 2(1) Application for a witness summons may be made where witness is likely to be able to give material evidence or produce a material exhibit but will not attend voluntarily and it is in the interests of justice to issue the summons.
S 2(2) Court shall issue summons requiring (i) the witness to attend the Crown Court at a time and place stated in summons and (ii) give the evidence or produce the thing.
S3(1) Disobeying a summons requiring attendance, without just excuse- guilty of contempt of court and punishable summarily (up to 3 months in prison). NB s 3(1) applies also to failure to attend the magistrates’ court when summoned.


W summons and warrant of arrest:

Mags ct

Magistrates court
Magistrates’ Court Act 1980
S 97(1) Magistrate may issue summons requiring a person to attend court on a specified date where satisfied that the person is likely to be able to give material evidence or produce any document or thing likely to be material evidence for the purposes of a summary trial and it is in the interests of justice to issue the summons.
S 97(2) If magistrate is satisfied on oath that it is probable the summons would not secure the witness’s attendance, he may issue a warrant.


W summons and warrant of arrest:

Mags ct 2

Magistrates court continued
S97(3) If a person summoned fails to attend, the magistrate may issue a warrant, but must first be satisfied (i) the person is indeed likely to be able to give material evidence or produce a material document or thing, (ii) he has been served with the summons and been paid or tendered reasonable sum for costs and expenses, and (iii) there is no just excuse for the failure to attend.
S 97(4) If any person attending or brought before a court refuses without just excuse to be sworn or give evidence or produce any document or thing, the court may commit him to custody for up to 1 month as may be specified in the warrant or sooner until he gives evidence or produces the document or thing, or impose a fine of up to £2500, or both. See also CP (A of W) Act 1965, s 3(1)


Sworn evidence

See Youth Justice & Criminal Evidence act 1999, s 55
S55(2): witness may not be sworn unless (a) he has attained the age of 14, and (b) he has sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath
S55(3): witness will be presumed to have this appreciation if he is able to give intelligible testimony if no evidence to the contrary is adduced by any party.
S55(4): where such evidence is adduced it is for the party calling the witness to show on a balance of probabilities that the witness does have this appreciation.


Unsworn evidence

Youth Justice & Criminal Evidence act 1999, s 56

A person who is competent to give evidence, but is under 14 or who does not have sufficient appreciation of the solemnity of the occasion etc. shall give evidence unsworn


Examination in chief

Questioning: evidence should be adduced by using non-leading questions. Rationale: witness must only give evidence of what s/he personally perceived.
Memory refreshing: witness will be permitted to refresh memory from a document (or a transcript of a sound recording). See CJA 2003, s 139. S 139(1)(a)&(b): witness must state in oral evidence that (i) the document records his recollection of the matter at the earlier time and (ii) his recollection is likely to be significantly better at that time than it is in oral evidence.


Examination in chief - previous statements

General rule- previous consistent statements are not admissible in examination-in-chief, but subject to CJA 2003, s 120.
S 120(2): where a previous statement is admitted to rebut a suggestion of fabrication it is admissible as evidence of the matter stated
S 120(3): where statement is made in a doc used to refresh memory, and the witness is cross-examined on it and it is received in evidence as a result, it is admissible as evidence of matters stated
S120(4): previous statement of witness will be admissible as evidence of matters stated if witness gives evidence that to best of his belief matter stated are true and any of these 3 conditions are met:


Previous statements, s 120(5)-(7)

Conditions relating to s 120(4)
S 120(5) statement identifies or describes person, object or place, or
S120(6) statement was made by witness when matters fresh in his memory but he does not remember them and cannot reasonably be expected to remember them, well enough to give oral evidence about them, or
S120(7) witness claims to be a person against whom an offence has been committed, the proceedings relate to the offence, the statement is a previous complaint about conduct which would constitute the offence if proved, the complaint has not made as a result of a threat or promise and before the statement is adduced the witness gives oral evidence in connection with it.
Note s 120(8)-re s 120(7) irrelevant if complaint was elicited by a leading question


Hostile witnesses

Where a witness, giving evidence, demonstrates himself to be not ‘desirous of telling the truth’ to the party calling him, the party may apply to the judge to treat the witness as hostile.
Application should be in the presence of the jury.
Judge will take account attitude of witnesses, demeanour, and extent to which he has cooperated with the party calling him, and also any previous inconsistent statement.
If the judge rules that the witness is hostile, the witness may then be asked leading questions.


Criminal Procedure Act 1865

CPA 1865, s 3: prohibits a party impeaching the credit of his own witness,

CPA 1865, s 3: prohibits a party impeaching the credit of his own witness, but if in the opinion of the judge the witness is adverse to the party calling him (ie hostile), the party may contradict the witness by other evidence, and any inconsistent statement the witness might have made. In relation to contradiction by an inconsistent statement, the witness first be must be asked whether he made the statement. Applies to hostile witnesses.
CPA 1865, s 4: If a party being cross-examined does not distinctly admit to making the previous inconsistent statement sought to be put, proof may be given that he did make the statement, but before this happens he must be explicitly asked if he made the statement.


Cross examination on previous statements in writing

CPA 1865, s 5: a witness can be cross-examined on a previous written statement, but his/her attention must be drawn to the parts of the statement which are going to be used to contradict oral testimony.
Remember that under CPA 1865, s 4 (above) the party must first be asked if he made the statement. If he admits that he did, the statement need not be proved. If he does not admit making it, the statement may be proved. He should then be asked if he adheres to oral testimony. If he says, ‘yes’, he may be contradicted and the part of the statement which is inconsistent should be read out.
NB- Ss 4 does not apply to hostile witnesses, but to the other party’s wn.


Pre-trial statements made by the accused

Wholly exculpatory statements

Mixed statements

Wholly exculpatory statements may be admitted only as evidence of reaction by the defendant to an accusations, and if made impromptu, as evidence of consistency where an accused testifies (See R v Storey (1968) 52 Cr App R 334)

Mixed statements by accused relied on by the prosecution are admissible as evidence of truth of matters stated (mixed statements contain both exculpatory and inculpatory statements, eg admitting presence but denying the offence). See R v Duncan (1981) 73 Cr App R 359. Preserved by CJA 2003, s 118 para 5.


Cross examination



Purpose: to elicit evidence favourable to cross-examining party’s case and qualify, weaken or undermine unfavourable evidence.

Scope: not limited to matters raised in XIC. May relate to any fact in issue and the credibility of the witness. However, there are limitations: exclusionary rules and discretions may prevent facts being put and judge has a discretionary power to place a time limit on cross-examination and to restrain unnecessary or improper questions.


Nature and sequence of Xx

Cross-examination: the questioning of a witness, including the
accused, by the opposing advocate of the party calling him. Includes right of an accused to cross-examine a co-accused.
Usually occurs after evidence-in-chief, but on occasion a witness may be ‘tendered’ for cross-examination ie there is no evidence-in-chief, the witness attends to be cross-examined only.
Sequence: Mags court- every other party may ask questions in cross-examination. Crown court: prosecution and defence witnesses may be cross-examined by any co-accused in the order their names appear on the indictment or as directed by the court and a defence witness may be cross-examined by the prosecution after cross-examination by any accused.


Xx - failure to examine on a matter

Failure to cross-examine on a matter: (i) party is taken to have tacitly accepted the matter (see Wood Green Crown Court, ex parte Taylor [1995] Crim LR 879), and (ii) where a fact is not put, it cannot be relied on in a closing speech (see Bircham [1972] Crim LR 430). However, if the omission is due to counsel’s inadvertence, judge has a discretion to allow a witness to be recalled so that the matter can be put (see R v Wilson [1977] Crim LR 553).


Role of J in Xx

In child complainant

The judge may ask questions of a witness and where accused is unrepresented may ask such questions as are necessary in the interests of accused.
Questions put in these circumstances are at the discretion of the judge.
Generally, judge should not intervene in cross-examination by a competent advocate, unless to clarify matters he does not understand or thinks the jury does not understand.

Judge may take over questioning of child complainant where the child is being difficult, following discussion with advocates as to appropriateness of this course and the type ad scope of questions the judge should ask.


Power not to impose timelimits on Xx

General duty of court to deal with cases efficiently and expeditiously and manage cases actively to ensure evidence presented in the shortest and clearest way possible.
Judge has power to impose reasonable time limits where advocate is being repetitious and/or long-winded.
Not the duty of counsel to put every point of accused’s case, however peripheral, or deploy lengthy cross-examination covering matters not in issue or unnecessary matters not needing to be put.
Entitlement to a fair trial is not inconsistent with effective control by judge of effective use of court time.


Xx by accused in person

See YJCEA 1999, ss 34-39
3 categories of witness protected from cross-examination by accused in person:
S 34: person charged with sexual offence may not cross-examine a complainant in connection with the offence or any other offence with which the person is charged in proceedings
S 35: ‘protected witness’ may not be cross-examined by an accused in person charged with a ‘specified offence’ (see s 35(3)).
S 36: general power of the court to direct accused may not cross-examine in person where quality of evidence might be diminished, and would be improved by such a direction and it would not be contrary to the interests of justice.


Xx on previous inconsistent statements

Such statements may be put and proved under the Criminal Procedure Act 1865, ss 4 & 5. S 4 does not apply to hostile witnesses.
As mentioned previously, (i) the witness must be first asked if he made the statement, and (ii) if the witness admits making the statements, the parts of the statement which are intended to be used to contradict his oral testimony must be drawn to his attention.
CJA 2003, s 119: inconsistent statements which are admitted in evidence are evidence of the truth of matters stated in them.


Xx and rule of finality

A witness’s answer to a collateral matter is final, unless it comes within one of the recognised exceptions.
The test to determine whether a matter is collateral was set out in AG v Hitchcock (1847) 1 Exch 9, Per Pollock CB:
“The test whether a matter is collateral or not is this: if the answer of a witness is a matter you would be allowed on your own part to prove in evidence – if it has such a connection with the issues that you would be allowed to give it in evidence – then it is a matter on which you may contradict him”


Exceptions to the rule of finality

Previous convictions


Reputation for untruthfulness

Disability affecting reliability


Suspect witnesses and care warnings

See Criminal Justice & Public Order Act 1994, s 32 and the principles in R v Makanjoula [1995] 3 All ER 730.
Judicial warnings to the jury that they should treat a witness’s evidence with care are discretionary.
The judge will decided whether a warning should be given and if so, the scope of the warning.
Depending on the facts of the case, the judge can warn the jury to take care before acting on the unsupported evidence of a witness.
There will need to be an evidential basis for suggesting the witness is unreliable and an evidential basis is more than simply suggestions made in cross-examination.


Restrictions on Xx on victims of sexual offences

See Youth Justice and Criminal Evidence Act 1999, s 41
S 41(1): Except with leave, no evidence can be adduced and no question asked in cross-examination by or on behalf of any accused at trial, about any sexual behaviour of the complainant.
S 41(2): the court may give leave only on an application by an accused and may not give leave unless satisfied that s 41(3) or (5) applies and a refusal of leave might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case.


Restrictions on Xx on victims of sexual offences

Youth Justice and Criminal Evidence Act 1999, s 41(3)

Conditions the court must be satisfied
S 41(3)(a): the issue is not an issue of consent or,
S41(3)(b): the issue is consent and the sexual behaviour of the complainant which the accused wants to ask questions about is alleged to have taken place at or about the same time as the event which is the subject matter of the charge or,
S41(3)(c): the issue is consent and the sexual behaviour which the accused wishes to ask questions about is so similar to the sexual behaviour which is part of the event charged or to any sexual behaviour which took place at or about the same time as the event, that the similarity cannot be explained by coincidence.


Youth Justice and Criminal Evidence Act 1999, s 41(5)

If the prosecution adduce evidence of sexual behaviour by the complainant, then questions by the defence about the complainant’s sexual behaviour may be permitted if they go no further than is necessary to enable the prosecution evidence to be rebutted or explained by the accused.


Unsworn evidence

Youth Justice & Criminal Evidence act 1999, ss 56

A person who is competent to give evidence but is under 14, or does not have sufficient appreciation of the solemnity of the occasion etc., shall give evidence unsworn.


Special measures – YJCEA 1999 ss 16-30

Key points
Witness is eligible for special measures on grounds of incapacity (s 16) if court considers the quality of evidence would be diminished by reason of it.
Witness automatically eligible if s/he is a child witness (ie under 18- s 16(1)(a)) or is a complainant to a sexual offence (s 16(4)).
Witness is eligible if in fear or distress about testifying (s17)
Automatically eligible where proceedings relate to a relevant offence (s 17(5)). Relevant offence is defined in s 17(6) as one described in Schedule 1A- use of knife or firearm)
Special measures available are set out at ss 23-30


Special measures

Ss 23-30 YJCEA 1999.
Screens (s 23)
Live link (s 24)
Evidence in private (s 25)
Removal of wigs & gowns (s 26)
Video recorded evidence in chief (s 27)
Video recorded cross-examination and re-examination (s 28)
Use of intermediary (s 29)
Communication aids/devices (s 30)


Child witnesses

Primary rule: presumption will be that for all witnesses under the age of 18, evidence in chief will be pre-recorded and any further evidence will be by live link (s 16 & s 27), unless the court is informed that the witness does not wish to be considered eligible for this special measure.
Pre-recorded video cross-examination or re-examination also available under s 28, but currently only on a pilot basis in a limited number of Crown Courts and only in the case of witnesses under the age of 16 at the time of the hearing or eligible for assistance on grounds of incapacity (See Youth Justice and Criminal Evidence Act 1999 (Commencement No 13) Order, SI 2013/3236).


Adult complainants in sexual cases

YJCEA 1999, S 22A

Upon application by complainant in a sexual case tried in the Crown Court for his/her evidence-in-chief to be video recorded, the witness is automatically eligible and the court must make a direction for this special measure unless satisfied that it would not maximise the quality of the complainant’s evidence.


W in cases involving weopans

YCEA 1999, s 17(5)&(6)

Witnesses to specified offences involving firearms, knives or bladed/pointed articles are automatically eligible for special measure unless the witness informs the court that he does not wish to be eligible.


Procedure for video recorded evidence in chief

See Crim Procedure Rules 2015 r 18.3 & the Criminal Practice Directions [2014] EWCA Crim 1569 para 27B (video recorded evidence-in-chief).
Crown Court- application in writing and notice served on all parties within 14 days of D indicating not guilty plea. If a party objects, written notice within 14 days of receipt of notice of application.
Magistrates’ court- application and notice within 28 days of D indicating intention to plea not guilty.



Not covered by special measures provisions of YJCEA 1999, which apply to witnesses only.
However, see s 33A: the court may direct that any evidence given by the accused may be given by live link where

Re video recorded evidence in chief

Not covered by special measures provisions of YJCEA 1999, which apply to witnesses only.
However, see s 33A: the court may direct that any evidence given by the accused may be given by live link where
It would be in the interests of justice
Where under 18, ability to give evidence compromised by low level of intelligence or social functioning and ability to participate effectively would be improved by use of live link
Where over 18, unable to participate effectively because he has a mental disorder or significant impairment of intelligence or social function and ability to participate effectively would be improved by use of live link
See also Para 3E.4 of the Criminal Practice Directions below.


Questioning of vulnerable Ws

See generally, Criminal Practice Directions on cross-examination, Paragraphs 3E.1, 3E.4 and 3E.5. Key points
Over-rigorous cross-examination of children or vulnerable witnesses should be stopped by the judge (3E.1).

All witnesses including the defendant and the defendant’s witnesses should be enabled to give their best evidence (3E.4).

‘Ground rules’ for the scope and nature of XX of children and vulnerable witnesses should be settled in advance. The ground rules may require the avoidance of ‘tag’ questions, suggestions to the witness s/he is untruthful and even restrict the accused’s case being put to the witness.
However, where there are restrictions like this, at the end of the XX, there should be a discussion between judge and counsel. After the discussion, the jury may be reminded about inconsistencies after the discussion and again in summing-up.