This is the first biannual update of the Law of Criminal and Civil Evidence-Principles
and Practice since its publication in July 2002. This update covers developments in
the law from July 2002 to the end of February 2003.
Chapter 1-Introduction
R-v-Barry George [2002] The Times 30
The Court of Appeal affirmed Barry George's conviction for the murder of Jill DandoThe Court of Appeal's judgment contains an extensive review of the evidence in this
case and illustrates a number of the key concepts described in the book's introductory
chapter.
Chapter 2-The European Convention on Human Rights
The influence of the European Convention on Human Rights continues to feature in
Court of Appeal decisions on various aspects of evidence law. These are considered in
the context of specific subject areas to which this update relates. One point of general
interest however is the decision of the House of Lords in Clingham and Kensington
and Chelsea LBC: R v Manchester Crown Court, Ex parte McCann and Others [2002]
4 All ER 593. The decision holds that proceedings for obtaining anti social behaviour
orders (ASBO's) under the section 1 of the Crime and Disorder Act 1998 are civil
proceedings and not criminal proceedings and do not therefore attract the specific
components of the right to a fair trial under Article 6 (2) and (3). Such orders are often
made on the basis of the admission of hearsay evidence that would be inadmissible in
criminal proceedings. The House of Lords came to the conclusion that the
proceedings were civil in their nature because, although such orders are made in
magistrates' courts, the proceedings are begun by a civil process of making a
complaint. Such an order does not require criminal liability to be established and
does not result in a defendant being convicted of a criminal offence, although an
allegation that such an order has been breached can result in a prosecution and
possible imprisonment. As a consequence the Civil Evidence Act 1995 regulates and
indeed permits the admission of hearsay evidence in civil matters. The House of
Lords did not consider the use of the Civil Evidence Act 1995 was in any way
incompatible with the ECHR. Further consideration was given by the House of Lords
as to what is the appropriate standard of proof for obtaining such orders considered in
Chapter 23.
Chapter 3 and 4-The Process of Proof and the Aims of Criminal Evidence
White Paper-Justice for All Command Paper 5563 (www.cjsonline.org)
As anticipated in Chapter 4 the government introduced its White Paper Justice for All
in July 2002. The recommendations in the long-awaited White Paper are based for the
most part on the proposals contained in Lord Justice Auld’s report into the criminal
justice system
The stated aims of Justice for All seek to introduce reforms at all stages of the
criminal justice process from the investigation of crime, trial procedures and the
court’s powers of sentencing. The proposals are important for the rules of criminal
procedure and are also significant for the procedural context in which the rules of
evidence operate in criminal cases. One further and important stated aim of the
proposals is to simplify and modernise the approach to evidence.
Specifically, Justice for All makes the following recommendations.
Detection of crime
 increase in police numbers to 130,000;
 increased expenditure on operational policing;
 greater specialisation in detective skills;
 more effective use of science and technology in the detection of crime.
Pre-trial procedures
 continued extension of locating police and CPS staff in joint Criminal Justice
Units in police stations;
 CPS staff to assume greater responsibility for deciding the appropriate charge
for the defendant;
 CPS staff to give early indication of possible sentence to the defendant to
encourage an early guilty plea;
 extend magistrates custodial sentencing powers to 12 months;
 extend police powers to impose bail conditions on a suspect before charge
 extend the prosecution’s right to appeal against bail for all imprisonable
offences;
 improve the procedures for the pre-trial disclosure of prosecution and defence
evidence;
 extend the availability of preparatory hearings to include ‘serious’ offences as
well as those that are regarded as ‘complex’.
At trial
 allow for trial with a judge sitting alone in complex and lengthy trials and / or
where there is a risk of jury intimidation;
 allow the court to be informed of the defendant’s previous convictions where
it is ‘relevant’;
 give witnesses greater access to their original statements when giving
evidence;
 extend the use of hearsay evidence where there is a ‘good’ reason for the
witness not attending trial;
 remove the double jeopardy rule for serious offences where fresh evidence
comes to light;
 give the prosecution the right of appeal against rulings by the judge which
terminate the prosecution case before the jury decides;
 increase the proportion of the public who are eligible for jury service.
The Criminal Justice Bill 2002
Based on the proposals contained in Justice for All and as an integral part of its
proposals for the forthcoming legislative session, in November 2002 the government
presented the Criminal Justice Bill to Parliament. References to the Bill’s provisions,
which contain over 200 sections, are included at relevant parts of this update. The
Bill’s proposals have been included for background information only as it is expected
that the new provisions will not be implemented until the summer of 2005 at the
earliest – subject, of course, to Parliamentary approval. Some of the proposals are
highly controversial and it would be naïve to assume the Bill will be enacted in its
present form!
In putting the Bill forward, the Home Secretary stated: -" The purpose of the criminal
justice system must be to establish the truth, ensuring justice for victims and
witnesses. That is what our reforms are designed to help achieve. Our starting point
must be to bring more cases to court successfully and ensure the conviction of the
guilty, not simply defending an institutional status quo on the grounds that any
changes could make things worse.” There is no doubt that the main impetus behind
the proposals is the conviction of a greater number of guilty individuals. In its
response, Liberty’s Director John Wadham has described the proposals as being “a
shameful attack on justice…” He argues that the derogation of a defendant’s rights
will lead to miscarriages of justice and will not give victims the rights which they
deserve.
Amongst the Bill’s proposals which have implications for the rules of evidence and
the operation of the trial process are: amendments to the rules relating to the pre-trial
disclosure of evidence; a simplification and modernisation of the rules of evidence,
including reform of the hearsay rule and the rules governing the admission in
evidence of a defendant’s past bad character; the utilisation of judge only trials in
complex fraud cases; ensuring more representative juries by abolishing the categories
of ineligibility; allowing the prosecution to appeal against a trial judge’s decision on a
point of law during a trial and permitting defendants to be retried for certain offences
notwithstanding an earlier acquittal where fresh and compelling evidence later
emerges. The substance of the proposals are considered in the context of relevant
chapters throughout this update.
Chapter 5-Unlawfully obtained evidence
R v Robinson [2002] The Times 13 November-This case is also relevant to Chapter
10.
The defendant appealed against his conviction at Bristol Crown Court of conspiracy
to defraud the Legal Services Commission (formerly the Legal Aid Board). The
defendant had been the senior partner of a solicitors’ practice. It had been alleged that
he had operated a large fraud upon the legal aid fund over a seven-year period that
had involved many members of the firm. The defendant denied fraud maintaining he
had been unaware of the fraud being practised by his clerks including one Richard
Hill. He pleaded guilty to an offence of fraud and gave evidence against the
defendant. There were numerous grounds of appeal but the point of interest which is
pursued here was the revelation during the trial that the Mr Hill, the "whistle blower"
was a paid police informant who had, in the past, informed on client's who used the
defendant's practice. It was accepted that his role as a police informant was different
in character from his conduct in exposing the legal aid fraud. The Court of Appeal
upheld Robinson's conviction. In doing so however, the Court of Appeal expressed
considerable concern about the use of solicitor's clerks as police informants and
invited the Chief Constable of Gloucestershire to make submissions in this regard.
Legal professional privilege which includes the right of a client charged with or under
suspicion of a criminal offence to consult with a solicitor in private at any time is a
human right of fundamental importance which is clearly undermined in circumstances
where an employee of a criminal practice is leaking privileged information to the
police. The Court of Appeal was referred to the Regulation of Investigatory Powers
Act 2000 and to the Code of Practice issued thereto on Covert Human Intelligence
Sources. The Code makes it clear that although the Act does not make any special
protection for legally privileged information the use of such information has clear
implications for both Article 6 and Article 8 of the ECHR. Criminal prosecutions
utilising such evidence would be in clear danger of being stayed for an abuse of
process. Whilst there might be exceptional circumstances compelling the use of such
a source of information, in the vast majority of cases the use of such an informant
would be wrong. The Court of Appeal concluded that the language of the code
involved recognition of the need to respect the rights of those under suspicion of
involvement in criminal offences who exercise their right to consult a solicitor and
was assured that in the current climate (post HRA 1998) solicitor's employees would
not be registered as informants.
Articles: Simon McKay: Entrapment: competing views on the effect of the Human Rights Act
on English criminal law (2002) No 6 Pages 764-774
David Ormerod: ECHR and the exclusion of evidence: trial remedies for Article 8
breaches? [2003] Criminal Law Review 61
Chapter 6- Confession Evidence
Allan -v-United Kingdom [2003] 36 EHRR 12-/covert surveillance/use of an
informer to obtain a confession from a defendant charged with murder.
Allan (the applicant) had been convicted of murder. The police had gone to
considerable efforts to obtain evidence against him. He had been arrested along with a
fellow co-accused on suspicion of an unrelated robbery. In the course of that
investigation the police received an anonymous tip-off that he was responsible for the
murder of a supermarket store manager some days before the alleged robbery. Allan
and his co-accused were charged with the unrelated robbery and remanded into
custody. The Chief Constable of Greater Manchester Police authorised officers to
secretly bug the defendant's cell and visiting area of the prison used to remand Allan.
Conversations between Allan and his girlfriend and hiss co-accused were obtained.
Nothing of significant relevance was obtained in relation to the murder investigation
from these recordings. Some days later Allan was arrested on suspicion of murder. He
refused to answer questions in interview. Further authorisation was obtained to secure
the "services" of a long-standing police informant known as H at the trial. H had a
criminal record and had been arrested on unrelated matters. He was placed in Allan's
cell for the express purpose of gaining Allan's trust and eliciting information from
Allan regarding the murder. At a later stage H had been fitted with a recording device.
Telephone conversations between the investigating officers and H included comments
by the police encouraging H to "push him for what you can." H eventually made a 59
page witness statement detailing his conversations with Allan. He was then released
on police bail pending sentencing which was due to occur after he had given evidence
at Allan's trial. In his evidence, H stated that in one conversation which had not been
recorded, Allan had admitted his presence at the murder scene. This was disputed by
Allan.
The audio recordings were admitted at Allan's trial despite objections as to their
admissibility under sections 76 and 78 of PACE. The only evidence connecting Allan
to the murder was his alleged admission. Before the ECHR, counsel for Allan argued
that the use of the informant by the police had been a deliberate attempt to circumvent
the protections given to suspects during the interrogation process. The use of an
informant in these circumstances constituted a breach of Allan's right to a fair trial.
The government sought to rely on the ECHR's decision in Khan v United Kingdom
(2001) 31 EHRR 45, maintaining the evidence was reliable, that Allan had been
afforded the opportunity of challenging the evidence at his trial and that in serious
cases such as murder there was a strong public interest in admitting such evidence.
The ECHR, drawing on the jurisprudence of Canada and Australia raising similar
issues, concluded that Allan had been denied the right to a fair trial in that his right to
silence had been completely undermined. This was particularly so as the informant
(H) was being used as an agent of the state and the exchanges between him and Allan
had been the functional equivalent of an interrogation without any of the safeguards
associated with such interrogations. The case of Khan was easily distinguished on the
facts: the alleged admissions in this case had not been spontaneous unprompted
statements and the applicant, in the Court's view, had been subject to psychological
pressure which impinged on the "voluntariness" of the disclosures he had allegedly
made. Furthermore, the alleged admissions constituted the main and decisive evidence
against him and the unavailability of an audio record of the alleged conversation
clearly compromised the quality of the evidence.
The decision is perhaps unsurprising. The ECHR has stated on numerous occasions
that the right to silence and privilege against self-incrimination lie at the heart of a fair
procedure and are designed to protect against improper compulsion. However,
improper compulsion is not restricted to coercion or the use of duress. On the facts in
this case, the state had not respected the defendant's freedom of choice not to
incriminate himself.
Does this decision outlaw such investigative techniques? Arguably it does. Even if H
had been an undercover police officer with nothing to gain and the crucial admission
had been recorded, it is difficult to see how this could be construed as anything other
than an interrogation and therefore contrary to Code C and R v Christou [1992] 4 All
ER 559.
R v Ashfaq Ahmed Mushtag-[2002] EWCA 1943-Article 6 and the role of the jury
in relation to confession evidence challenged at a voire dire
At his trial, the defendant challenged the admissibility of incriminating admissions he
had made to the police. The challenge was based on section 78 and 76 (2) of PACE
with the defendant alleging several breaches of Code C. Following the voire dire, the
trial judge admitted the evidence. The defendant chose not to give evidence at his
trial, although the allegations were once more put to the investigating officers in
cross-examination. Under the current Judicial Studies Board Specimen Direction the
judge is required to direct the jury to assess the weight to be given to the confession
evidence. The direction makes it clear that the jury must disregard a confession if it
comes to the conclusion that it is untrue. The direction goes on to state however that if
the jury is sure of its truth, a confession can be relied on even if it has or might have
been obtained by oppression or other improper circumstances. The defendant
appealed against his conviction on the basis that the direction breached Article 6 (1) in
that the jury should have been directed to disregard the confession unless the jury was
sure it had not been obtained as a result of oppression or improper means. To allow
the jury to rely on evidence which had been obtained through methods of coercion in
defiance of the defendant's will was contrary to Article 6.
The Court of Appeal held, in dismissing the appeal, that (1) unless the prosecution
could satisfy the judge beyond reasonable doubt that a confession had not been
obtained by oppression, the confession would not be heard by the jury. (2) The jury,
being a constituent part of the court, was not a separate public body under section 6 of
the Human Rights Act 1998 and had not breached the defendant's human rights in
fulfilling the function asked of it, namely to assess the degree of weight to be attached
to the confession not its actual admissibility. Furthermore, the voire dire procedure in
the Crown Court by which the admissibility of disputed confession evidence is
resolved provided the defendant with significant practical advantages. The absence of
the jury at such a hearing meant that the defendant did not have to feel constrained
about raising matters relevant to the admissibility of his confession, which a jury
might construe as being prejudicial to the defendant. (3) Whilst the trial judge’s
direction was in compliance with the Specimen Direction, the Court recommended
that the Judicial Studies Board should review the specimen directions for confession
evidence in respect to oppression and improper circumstances.
R v Wahab [2003] 1 Cr App R 15-whether advice from a solicitor can contribute to
the making of an unreliable confession
In this case the defendant tried to argue that the advice he had been given by his
solicitor to confess had been negligent advice and accordingly, his confession should
have been ruled inadmissible as being unreliable. The defendant had been arrested on
suspicion of conspiracy to supply drugs. There was strong evidence to link the
defendant to the charges. Wahab alleged the investigating officers had been
unpleasant to him referring to members of his family who were in custody, as a means
of putting pressure on him to confess. At a later stage in the investigation, Wahab
asked his solicitor to see whether a deal could be done with the police. His solicitor
relayed the substance of what the officers had told him, namely that they could not
give any guarantees but that the police would look again at the situation if admissions
were forthcoming. After carefully considering all the circumstances (which his
solicitor had documented and recorded), including the risk of conviction, the
involvement of his family and the availability of a sentencing discount for an early
guilty plea, Wahab chose to make a number of admissions. At a voire dire hearing,
Wahab called an expert witness (another solicitor experienced in police station work)
to prove his solicitor had been incompetent. It was further contended that Wahab had
it in his mind that his family would be released from custody if he confessed. The trial
judge rejected the criticism of Wahab's solicitor, describing him as a tactically aware
defence solicitor who "adopted a thought-out strategy which he believed to be in the
best interests of his client."
The Court of Appeal restated the position that in deciding the reliability of a
confession under section 76(2)(b) PACE the focus should always be on the specific
circumstances existing at the time the confession was made. The wording in section
76 (2) (b) "having regard to anything said or done…." was not confined to the actions
or omissions of police officers. Citing R v Goldenberg [1988] Crim LR 678 however,
the Court of Appeal held that section 76 (2)(b) did require something extraneous to
the person making the confession. In R v Harvey [1988] Crim LR 241 that had been
her lover's confession made in her presence coupled with her mental state. Can a
solicitor's advice constitute something extraneous? It could, says the Court of Appeal,
dependant on certain facts such as advice given to a particularly vulnerable suspect.
On the facts of this case the Court of Appeal concluded that the appellant had not
been influenced by anything said or done by anyone else. It had been he who had
instructed his solicitor to seek an accommodation with the police. He was an
intelligent man and his solicitor and the police had acted properly throughout. The
Court of Appeal underlined the point that section 76(2) is not concerned with the
defendant’s motives for confessing, except and in so far as such motive affected the
reliability of what was said.
The one important point this case reiterates for defence solicitors called to advise
suspects at the police station is the crucial importance of taking and keeping
contemporaneous notes of everything that takes place, what advice is given and
whether that advice is followed. Solicitors should always obtain a written disclaimer
from a client who refuses to act in accordance with the advice given. Arguably it is
also good practice to get a client to sign his agreement to the course of action to be
taken, recording the basis on which that decision is taken.
Brennan v United Kingdom [2002] 34 EHRR 18-Restricting access to a solicitor
Following his arrest on suspicion of being a member of the IRA, B had been denied
access to a solicitor for 24 hours. When B was permitted access to a solicitor, he was
alleged to have confessed whilst waiting for his solicitor to attend. B had to consult
with his solicitor in earshot of a police officer and both B and his solicitor were
warned in advance that no names should be mentioned and that the consultation
would be prevented from proceeding if anything was said which might be considered
as hindering the investigation. The solicitor was not allowed to be present at any
police interviews, nor was any independent witness present. B contended that his
right to a fair hearing under Article 6(1) European Convention on Human Rights 1950
had been breached.
In granting the application, the European Court of Human Rights held (1) the denial
of access to a solicitor for 24 hours had not resulted in a breach of Article 6 since
whilst B had been interviewed by the police during that period, he had not made any
incriminating admissions; (2) there had been sufficient opportunity provided before
the trial to identify any police oppression during the conduct of the police interviews;
(3) under Convention law, the right of access to a solicitor could be subject to
restriction for a good cause but the presence of a police officer during B’s
consultation with his lawyer, coupled with the express restriction imposed upon B,
had the clear potential to prejudice B’s defence and accordingly Article 6 had been
infringed. The usefulness of the lawyer's assistance in such circumstances was wholly
undermined because it prevented the defendant from speaking frankly. Given he had
already made admissions prior to his solicitor attending and given he would undergo
further interrogation without the assistance of a solicitor; his defence had been
irretrievably prejudiced.
R v Corelli [2001] EWCA Crim 974 [2001] Crim LR 913-Use of a co-accused's
inadmissible confession by another co-accused
This case raised similar issues to those that arose in R v Myers [1998] AC 12. The
point however was not the same. In this case A and B were jointly charged with
handling stolen goods. A had made a number of incriminating admissions in interview
with the police that were helpful to B. At trial however, A's confession was held to be
inadmissible in accordance with section 76 (2)(b). The trial judge did not consider A's
confession to be a voluntary one. At trial A gave evidence in support of his own
defence. B's counsel sought to cross-examine A on his earlier confession in order to
undermine his credibility whilst giving evidence on oath. The trial judge refused
leave. A's decision to give evidence on oath represented a material difference from
the position in R v Myers. It will be recalled that in the R v Myers it was unclear at
the outset of the trial whether A would give evidence in support of her defence. B's
counsel therefore sought to call the police officers who had heard A's confession to
repeat in court the substance of what A had said. This of course raised the problem of
hearsay evidence. Another point of difference was that A's confession in R v Myers,
although not relied on by the prosecution for breaches of Code C was nonetheless
accepted as having been a voluntary confession. In allowing the evidence to be given
in R v Myers, this point had been felt to be significant.
The circumstances in Corelli did not raise an argument as to the admissibility of
hearsay evidence since B was not seeking to rely on A's confession for the purpose of
proving the truth of facts asserted, namely that its contents were true. B sought to rely
on A's confession only to show the inconsistency of A's position whilst giving
evidence on oath, thereby undermining A's credibility. As a consequence, the
decision in R v Myers could be distinguished. Applying the principles in Murdoch v
Taylor [1965] AC 574 and Lobban v R [1995] 1 WLR 877 which provide that a coaccused must have an unfettered right to cross-examine a co-defendant on matters
relevant to the co-accused's innocence, B had the right to cross-examine A as to his
inadmissible confession. Where this occurs however, the Court of Appeal makes it
clear that the jury should be warned that the only relevance of the cross-examination
on the confession is to the credibility of the maker of the confession and the judge
should explain why the prosecution were not allowed to use it. The jury must be
instructed that it cannot use the statement as support for the prosecution's case against
A. If in response to B's questioning A asserts his confession was induced by threats, B
must accept A's evidence as his cross-examination is as to credit and not to show that
anything A said in his statement was true.
One further ground of appeal in this case had been the trial judge's refusal to allow B
to cross-examine A on two spent convictions relating to offences of dishonesty. Does
the Rehabilitation of Offenders Act 1974 have any application in the context of loss of
shield under 1 (f)(iii)? As mentioned in Chapter 21, section 7 of the Act does not
affect the determination of any issue, or prevent the admission of any evidence
relating to a person's previous convictions in criminal proceedings. Whilst courts are
encouraged to give effect to the spirit and general intent of the Act in determining
admissibility arguments, the Court of Appeal in this case applied the principles in
Murdoch and Taylor [1965] AC 574 which decree that a co-accused has an unfettered
right to cross-examine another co-accused about his previous convictions.
Consequently, notwithstanding the Rehabilitation Act 1974, the law was such that
providing the questioning of the co-accused was relevant, the trial judge had no
discretion under 1(f)(iii) to disallow cross-examination on previous spent convictions.
By virtue of clause 112 of the Criminal Justice Bill 2002, the admissibility of a
confession by one co-accused at the instance of another will be governed by the
provisions of section 76 of PACE, taking account the standard of proof applicable to a
defendant that being on the balance of probability.
Chapter 7-The Right to Remain Silent
There have been a rash of decisions relating to the provisions of section 34 of the
Criminal Justice and Public Order Act 1994 adding to the already considerable
jurisprudence that exists. One case that should have been included in chapter 7 but
was not is the decision of the Court of Appeal in R-v-Betts and Hall [2001] 2 Cr App
R 16
This case once again highlights the absurd complexities generated by judicial
interpretation of section 34. It also underlines the point that a defendant cannot hide
behind the advice of his solicitor to remain silent. As the Court of Appeal restates in
this case, it is the genuineness of the defendant’s decision to remain silent which the
jury must have regard to. The adequacy of the defendant’s explanation as to why he
chose to remain silent may will often be relevant to that assessment of genuineness.
Was the advice given the real reason for choosing not to mention facts the defendant
subsequently relies on? As stated in Chapter 7, the revised Judicial Studies Board
Specimen Directions (July 2001) require the jury to give due weight to the decision by
a defendant to remain silent on legal advice.
Beckles v UK-(2003) 36 EHRR 13-Article 6-inadequate direction to the jury
In Beckles v UK, the ECHR found the UK in breach of its obligations under article 6
(1). This case raised very similar issues to those in Condron v UK (2001) 31 EHRR 1.
In this case the applicant (Beckles) had remained silent in interview on the advice of
his solicitor. Although at his trial and in the presence of the jury, the defendant had
expressed himself willing to waive his legal professional privilege in order to explain
why he had remained silent on legal advice, the matter was never pursued. The
defendant appealed against his conviction on the basis that the trial judge’s direction
to the jury had been inadequate. For the reasons given in Condron v UK, the ECHR
concluded the defendant had not received a fair trial as insufficient weight had been
attached in the judge’s direction to the fact that the applicant had remained silent on
legal advice. Furthermore, the trial judge had denied the defendant the opportunity of
submitting evidence which might have had a bearing on the genuineness of the
defendant’s reasons for remaining silent. As the jury had been left at liberty to draw
an adverse inference notwithstanding it might have been satisfied as to the plausibility
of the explanation given by the defendant, the applicant could not be said to have
received a fair trial.
R v Howell-[2003] EWCA Crim 01-Role of solicitor in giving advice at the police
station
This recent decision of the Court of Appeal is of practical importance for all those
who advise suspects at the police station. Howell was suspected of involvement in a
serious assault on his flat-mate. Prior to his interview he told his solicitor, as he would
later tell the jury, that he had acted in self-defence when he stabbed his flat-mate. His
solicitor asked the investigating officers if the victim of the attack had made a written
statement. He had not. He had however given the investigating officers a detailed
verbal account including the specific allegation that the defendant had attacked him
with a knife. The defendant had indicated to his solicitor that the victim might
withdraw his allegation. Consequently the solicitor advised him to make no comment
in interview. No evidence was forthcoming from the solicitor at the defendant's trial
as to the reasons for his advice. The defendant was asked in cross-examination, why,
if he was an innocent man had he not jumped at the chance of putting forward his
version of events. The defendant gave as his reason for not answering questions, the
fact that he had simply followed the advice of his solicitor. In his summing up the trial
judge instructed the jury to consider whether the defendant had been right to act upon
the advice of his solicitor. Citing Condron v UK and R v Betts and Hall, the Court of
Appeal pointedly suggests that recent decisions on section 34 have lost sight of the
real meaning of the words in the section, namely whether it was reasonable for the
defendant to have remained silent. Even though the defendant might genuinely have
relied on legal advice, this case suggests that if it was not reasonable for the defendant
to have done so (a decision for the jury), an adverse inference can still be drawn.
Reasonableness depends on all the circumstances. In this case the Court of Appeal
concluded that the solicitor had been wrong to advise silence on the basis that a
written complaint from the victim was not available, especially as adequate oral
disclosure had been given. This was not a case where it would have been difficult for
the defendant to recall events on the evening in question. The defendant had been
there in the flat. He must have known whether he acted in self-defence or not. In the
circumstances it had been permissible for the jury to draw an adverse inference on the
basis that it had been reasonable to have expected the defendant to mention such facts
notwithstanding the advice of his solicitor. The Court of Appeal talks of the important
responsibility defence solicitors have when giving advice at police stations.
According to this decision: - “ There must always be soundly based objective reasons
for silence, sufficiently cogent and telling to weigh in the balance against the clear
public interest in an account being given to the suspect by the police.” As examples of
the type of instance in which a solicitor could justifiably advise silence, the Court of
Appeal cites such matters as the suspect’s mental condition and his ability to recollect
events without reference to documents or some other source.
The advice of the solicitor in this case was questionable but if the defendant genuinely
relied on it, is it fair to hold his silence against him? It requires a suspect to defy the
advice of a professionally qualified individual. This would represent quite a leap of
faith for someone inexperienced in police station procedure. The Court of Appeal
considers its approach in this case to be entirely consistent with the jurisprudence of
the European Court of Human Rights. Is it? In Condron and in Beckles, the ECHR
talks of the jury being satisfied as to the plausibility of the defendant’s explanation for
remaining silent. If the defendant genuinely relied on legal advice as the reason for his
silence, it cannot be held against him. Only if the defendant is hiding behind legal
advice because he has no answer to the allegations should a jury be entitled to draw an
adverse inference against him. Of course, each case is dependent upon its own facts
but the genuineness of the defendant’s decision is what is important. The genuineness
or otherwise is of course a matter of evidence in each case. A similar point is made in
the Court of Appeal’s decision in R v Betts and Hall in that if the jury concludes that
the defendant’s reasons for remaining silent were that he genuinely relied on legal
advice they should not hold the defendant’s silence against him. The Court of Appeal
added that this would not provide a licence to a guilty person to shield behind the
advice of his solicitor. In this regard the adequacy of the explanation advanced would
help the jury to decide whether reliance upon legal advice was the true motive for not
mentioning facts or whether it was because the defendant had no answer to offer.
The current Judicial Studies Board specimen direction on this point however differs
somewhat from the statement made in Betts and Hall, in that it refers to the
defendant's reasonable reliance on legal advice: "The defendant has given evidence that he did not answer questions on the advice of
his solicitor/legal representative. If you accept the evidence that he was so advised,
this is obviously an important consideration: but it does not automatically prevent
you from drawing any conclusion from his silence. Bear in mind that a person given
legal advice has the choice whether to accept or reject it; and that the defendant was
warned that any failure to mention facts which he relied on at his trial might harm his
defence. Take into account also (here set out the circumstances relevant to the
particular case, which may include the age of the defendant, the nature of and/or
reasons for the advice given, and the complexity or otherwise of the facts on which he
relied at the trial). Having done so, decide whether the defendant could reasonably
have been expected to mention the facts on which he now relies. If, for example, you
considered that he had or may have had an answer to give, but reasonably relied on
the legal advice to remain silent, you should not draw any conclusion against him.
But if, for example, you were sure that the defendant had no answer, and merely
latched onto the legal advice as a convenient shield behind which to hide, you would
be entitled to draw a conclusion against him, subject to the direction I have given
you."
The direction talks of the jury not drawing an adverse inference where it is satisfied
that notwithstanding the defendant may have had an answer to give he reasonably
relied on legal advice to remain silent. An adverse inference should only be drawn
where the jury concludes that the defendant latched on to legal advice as a convenient
shield with which to hide behind.
The person receiving legal advice at the police station has a choice. He or she does
not have to follow legal advice. When advising silence a solicitor should ensure the
defendant is fully informed of the risks, namely that notwithstanding the advice given,
the jury may still choose to draw an adverse inference. The decision is that of the
defendant. The decision in R v Howells requires the solicitor to ask her or himself
“how will my advice be viewed by the court…..?” Unless there are objectively sound
reasons for the advice (which the solicitor ought to place on record) it will be difficult
for a defendant to prove he reasonably relied on legal advice. It would seem that the
defendant’s decision to rely on legal advice must now be both genuine and
reasonable.
R v Ashghar Ali, Liaqat Ali and Sarfraz Ali [2001] EWCA Crim 1757-Use of
prepared statements at the police station
This case is a reminder to defence solicitors of the usefulness of prepared statements
at the police station. Rather than choosing to remain silent a suspect may be advised
to put forward his denials or defence in a written statement prepared by his solicitor.
Such a course of action insulates the defendant from a section 34 inference being
drawn against him at a subsequent trial. Such statements however need to be very
carefully drafted as any omission in the statement which is then plugged at trial with
further information will be vulnerable to the accusation that the defendant is now
putting forward facts which he has not previously raised. Where new facts are raised
the nature of the adverse inference will not be that the defendant has subsequently
fabricated those facts but that he did not consider his earlier account would withstand
scrutiny by the investigating officers.
R v Dervish [2002] 2 Cr App R 6-Admissibility of silence as part of the charging
process
The provisions of section 34 (1) CJPOA allow an adverse inference to be drawn
where the defendant fails to put forward facts which he subsequently relies on either
(a) at any time before he was charged with the offence or (b) on being charged with
the offence or officially informed that he might be prosecuted for it.
The issue to be decided by the Court of Appeal in Dervish was whether adverse
inferences could be drawn against D’s silence when being charged even though his
silence during interview with the police had been ruled inadmissible due to breaches
by the police of the Codes of Practice.
In Dervish, D was convicted of conspiracy to be concerned in the supply of a Class A
drug. At interview, after the involvement of an undercover police officer had been
belatedly revealed to his representative by the police, D had made no comment in
response to questions. When charged, D again made no comment. At trial, while the
interviews were ruled inadmissible because of breaches of the Codes of Practice
issued under PACE, no objection was taken to the admissibility of the defendant's
silence during the charging process. It was submitted by the defendant that no adverse
inferences could be drawn from his silence when charged when evidence of his
silence at the interview had been excluded. It was contended on behalf of the
defendant that allowing an adverse inference to be drawn in these circumstances
would be to allow the police to nullify the safeguards contained in the Codes of
Practice knowing they can fall back on the adverse inference at the charging stage.
This point of view was rejected by the Court of Appeal. The wording of section 34
makes it clear that an inference may be drawn at each stage. The suspect is cautioned
as to the dangers of failing to reveal facts at each stage, both before interview and on
being charged. It is open to the defendant at trial to explain his reasons for remaining
silent at the charging stage by reference to the failings of the police during the
interview stage. The Court of Appeal did observe that if the police deliberately
breached the safeguards under PACRE knowing they would have the fall back
position under section 34 (1) (b), it would be likely that a trial judge would exercise
his discretion prevent an adverse inference under each section.
R v Elliott [2002] 5 Archbold News 2-Advising silence because there is sufficient
evidence to charge
This Court of Appeal decision re-affirms the position in the earlier decisions of R v
McGuinness [1999] Crim LR 318 and R v Ioannou [1999] Crim LR 586. It raised the
issue of whether an adverse inference can be drawn under section 34 in circumstances
where it is contended that an interview should not have taken place as there was
sufficient evidence to charge the suspect prior to interview. In such circumstances the
suspect should be charged (Code C 16 and 11.4) and, arguably section 34 has no
application because there is no attempt being made by the police to try to discover
whether or by whom an offence has been committed. The Court of Appeal concluded
that on the facts this was not a case where a fixed decision to charge irrespective of
anything the suspect may have said by the investigating officers as had been the
situation in R v Pointer [1997] Crim LR 676 and R v Gayle [1999] Crim LR 502.
Consequently, the officer was not prevented under the Codes from offering the
defendant the opportunity of putting forward his own account. The wording in Code C
16.1, requiring the custody officer, before making a decision to charge, to consider
whether there is sufficient evidence for a prosecution to succeed and the person has
said all that he wishes to say about the offence, must involve some consideration of
any explanation or lack of explanation coming from the suspect. Such an approach
accords with common sense. Mention should also be made in this regard to the
decision in R v Howell (see above). In this case the Court of Appeal talks about the
requirement for defence solicitors to have good reasons for advising silence. Lord
Justice Laws singles out the belief by the solicitor that the suspect will be charged in
any event whatever he says, as not being a good reason for advising silence. The dicta
in Howell, coupled with the decision in R v Elliott means solicitors will need to be
extremely cautious about advising silence in circumstances where a suspect is
indicating he may have a defence even though the police are of the opinion that there
is sufficient evidence to charge on the basis of the evidence they already have.
R v Daly [2002] 2 Cr App R 14-whether facts admitted forming part of the
prosecution's case can constitute "facts relied on" for the purposes of section 34
The defendant was charged with robbery. It was alleged that he had entered the kiosk
on a petrol forecourt, threatened a female cashier and stole mobile phone top-up cards
and cash. The incident was recorded on a security camera. The film did not show
whether the defendant had stolen any cash. The police entered the defendant's home
and recovered a quantity of top-up cards. The defendant was arrested on suspicion of
robbery. On the advice of his solicitor, the defendant refused to answer questions at
the police station. Having reviewed the video evidence before trial (which clearly
showed the defendant stealing the top-up cards) he indicated he would plead guilty to
the theft but denied stealing any cash or threatening force. The defendant was
convicted of robbery. He appealed on the basis that it had been wrong for the trial
judge to leave the matter of an adverse inference under section 34 to the jury when the
facts he was advancing at trial formed part of the prosecution's case. Furthermore it
was contended that the trial judge had failed to correctly direct the jury on section 34.
Rejecting the first ground of appeal, the Court of Appeal concluded that an admitted
fact is just as much a "fact relied on" as a fact which is extraneous to the prosecution's
case. If the defendant had been involved only to the limited extent to which he
subsequently contended, this was a fact he could reasonably have been expected to
mention when faced with the accusation. Upholding the second ground of appeal and
quashing the conviction for robbery, the Court of Appeal held the judge's direction to
the jury had been defective. It had left the jury free to draw an adverse inference
notwithstanding that it might have been satisfied with the plausibility of the
defendant's explanation for silence, namely that he had relied on legal advice. At the
time the advice was given the solicitor had not seen the video evidence and was
unaware of the weight of evidence against his client. The judge should have referred
to the potential difficulty the defendant would have in these circumstances of
admitting to a lesser offence.
R v Shokat Chenia [2002] EWCA 2345- Inadequate direction on section 34-whether
conviction had to be quashed
This is yet another Court of Appeal decision on section 34. In this case the court held
that the trial judge had failed to properly direct the jury in accordance with the
Judicial Studies Board specimen direction on section 34. The Court of Appeal
however held that the judge’s error had not deprived the defendant of a right to a fair
trial and as such, his conviction could not be regarded as being unsafe. The more
substantial or significant the departure from the norms of fairness recognised by the
ECHR, the more likely the act or omission by the trial judge would result in the
conviction being deemed unsafe. Each case depends on its own particular facts. The
Court of Appeal chose not to consider the thorny question of whether a trial can be
unfair, but a conviction nevertheless safe.
Article
Andrew Keogh-No Comment Interviews-A lawyer's survival kit New Law Journal
Vol 152 No 7060 pp1882-1883
Chapter 8-Identification Evidence
R-v-Barry George [2002] The Times 30 August-Admissibility of incomplete
identifications
G appealed against his conviction for shooting Jill Dando, the television presenter.
Whilst there were no witnesses to the shooting the forensic evidence linking G to the
murder comprised a single fibre found at the scene of the crime which matched the
fibre of G’s trousers and a particle firearm discharge found in one of G’s pockets. The
Crown sought to link the firearm discharge to the bullet used in the killing. Only one
witness made a positive identification of G at an identification parade. However, other
witnesses who attended a video identification were called to give evidence. They had
been unable to make any positive identification of G, although they had given a
description of a man consistent with G's appearance.
In dismissing G’s appeal, the Court of Appeal found that when a witness to a crime
had failed to make a positive identification on an identification parade the witness
could nevertheless be called to describe the offender and what had occurred at the
identification parade. Whilst such evidence had to be treated with caution, it was for
the judge to decide whether the evidence was more prejudicial than probative in
considering whether it would be unfair to the defendant to admit it. In the instant case,
the prosecution’s case was based on the pattern of identification evidence including
G’s build, complexion and clothing. Since the jury was properly directed, the general
evidence of the witnesses was highly probative. An examination of each witness’s
evidence had been properly admitted and left to the jury. The identification evidence
looked at as a whole provided compelling evidence that G had been at the crime scene
and was supported by the forensic evidence and there was no doubt as to the safety of
G’s conviction.
Attorney-General’s Reference (No.2 of 2002) [2002] EWCA 1170Identification evidence from videos films and tapes
This case provides a useful summary of the instances in which video film and
photographic evidence of the scene of a crime can be left to the jury for it to decide
whether the individual charged with an offence is the person on the film or
photograph.
The Court of Appeal held that on reviewing the authorities there were at least four
circumstances in which a jury could be invited to conclude that a defendant
committed an offence on the basis of photographic evidence from the scene. These
circumstances are where: (a) the photographic image was sufficiently clear for the
jury to compare it with the defendant sitting in the dock (see Dodson & Williams
[1984] 79 CR App R 220; (b) where the witness knew the defendant sufficiently well
to be able to identify him from the photograph; (c) where a witness who did not know
the defendant spent a substantial time viewing and analysing the photographic image
thereby acquiring special knowledge that the jury did not have and the evidence of
identification was based on a comparison between them and reasonably contemporary
photograph of the defendant and the photograph was available to the jury (see Clare
and Peach [1995] 2 CR App R 333) and (d) a suitably qualified expert with facial
mapping skills giving opinion evidence based on a comparison between images form
the scene and a reasonably contemporaneous photograph of the defendant and the
photograph was made available to the jury- (see Stockwell [1993] 97 CR App R 260).
Revising Code D
During the police investigation of a criminal offence in order to test the ability of a
witness to identify a suspect and to safeguard against mistaken identity the police
employ a number of identification procedures, which are governed by Code D and its
annexes A-E. A revised Code D and the annexes to Code D were introduced in April
2002.
Paragraph 2.14 of the revised Code D requires that whenever a suspect disputes an
identification made by a witness, an identification procedure shall be held if
practicable or if the officer in charge of the police investigation considers that it
would be useful. The identification procedure should be instigated as soon as possible.
The presumption in favour of convening an identification procedure is rebutted where
Paragraph 2.15 of Code D applies by stating that an identification procedure will not
be necessary where, in all the circumstances, it would serve no useful purpose in
proving or disproving whether the suspect was involved in the offence, including, for
example, where the suspect is well known to the witness making the identification.
Paragraphs 2.14 and 2.15 appear to fully embrace the House of Lords decision in
Forbes [2001] AC 473 except that the police now have a choice to use either a video
identification or an identification parade. The test of ‘no useful purpose’ in paragraph
2.15, which as Forbes confirms is interpreted restrictively, would appear to be
satisfied where the suspect is well known to the eye-witness or where there is no
possibility that the witness would identify the suspect.
Code D requires that where the witness has previously identified a person, the police
should make a record of the witness’s description before the witness takes part in any
further identification procedures. A record of the witness’s description should be
given to the suspect or to his lawyer.
The revised Code D introduces a hierarchy of identification procedures by giving the
police officer in charge of the criminal investigation a free choice to decide between a
video identification or an identification parade and the identification officer considers
it practicable to arrange one of these forms of identification. Therefore, as a result of
the revision, video identification has been elevated to the same status as an
identification parade and is likely to result in the much wider use of video
identification procedure as it can be often undertaken sooner than an identification
parade and is much less intimidating for the witness.
If none of preferred procedures (video/identification parade/group parade) are
practicable the identification officer has the discretion to arrange a covert video
identification or covert group identification or in the last resort, a confrontation.
Code D prescribes the appropriate procedures to be followed depending on whether
the suspect is known and is available to take part in the procedures or where the
suspect is known but is not available or where the suspect is not known. For example,
in cases of disputed identity where the suspect is known and is available, the police
are required to use either a video identification or an identification parade or a video
identification or a confrontation subject to the requirements of Code D and its
Annexes.
Where the suspect’s identity is known but he is not available to participate in the
identification procedures, the identification has the discretion to make arrangements
for a video identification to be used.
If the suspect’s identity is not known, a witness may be taken to a particular
neighbourhood or place to see whether the witness can identify the person he had seen
on a previous occasion.
The revised Annexes to Code D deal with the following procedures:

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

Annex A: Video identification
Annex B: Identification parades
Annex C: Group identification
Annex D: Confrontation by a witness

Annex E: Showing photographs
Photographs (Annex E)



photographs should be used where the police have no suspect in mind;
the witness should be shown at least 12 photos;
no other witness should be present.
Photographs can be taken of any person who is detained at the police station, either
with his consent or if consent is withheld, reasonable force can be used, section64A
PACE.
Identification parade (Annex B)






the parade should consist of at least 8 people in addition to the suspect who as
far as possible should resemble the suspect in terms of appearance, age etc;
the suspect may choose his own position in the line;
each witness should be brought into the identification suite one at a time;
video recording or colour photograph shall normally be made of the parade;
where the identification officer is satisfied that the witness has properly looked
at each member of the parade, they shall ask the witness whether the person
they saw on the earlier relevant occasion is on the identification parade and, if
so, indicate the person the number of the person concerned.
where the suspect refuses to stand on the parade, the police may use an
alternative form of identification.
Group identification (Annex C)





may be held with or without the suspect’s consent;
the witness sees the suspect amongst a group of other people e.g. shopping
centre, rail station;
the chosen location should take into account number of people present, general
appearance of people;
a colour photo or video should be taken at scene immediately after
identification
the suspect’s solicitor or friend can be present.
Video identification (Annex A)





a set of video images including the suspect and at least 8 others is shown to the
witness;
where there are at least two suspects, at least 12 images should be shown to
the witness;
people in the images should be of roughly similar appearance, age and in same
location etc to the suspect;
each image is numbered;
the suspect’s solicitor should attend the identification;



the witness sees the all the images at least twice;
the witness is asked whether the suspect is the person seen on a previous
occasion;
a record must be made of procedures and those involved.
Confrontation by a witness (Annex D)



the witness is asked “is this the person you saw on the earlier occasion?”;
the confrontation may either be through a one-way screen or face-to-face with
the suspect;
the confrontation will usually be held at the police station.
Article: Andrew Roberts: Managerialism and Myopia: The Government's consultation
Draft on PACE-Code D-Criminal Law Review [2002] 873
Body samples
Retaining the suspect’s fingerprints and DNA samples
Section 81 Criminal Justice and Police Act 2001 amended PACE so as to permit the
police to retain a suspect’s fingerprints and DNA samples even where the person from
whom they have been obtained has been acquitted of the offence. This provision was
challenged in Chief Constable of South Yorkshire, ex parte Marper [2002] EWHC
478 under Article 8, the right to privacy. The Court of Appeal held that the retention
of fingerprints and DNA samples under section 64 PACE (as amended) constituted
interference of an individual's privacy under Article 8 (1). Such interference had to be
justified in a democratic society. Lawful authority was required before a sample
could be taken from an individual. The retention of such samples on the DNA
national database was extremely beneficial to the society at large. The scale of the
intrusion to the individual was proportionate to the aim to be achieved: the aim being
a significantly enhanced database which greatly assisted in the prevention and
detection of crime.
Chapter 9- Disclosure of Evidence
Possible Future Law Reform
The Criminal Justice Bill proposes a number of changes to the prosecution’s duty to
disclose ‘unused’ material under the Criminal Procedure and Investigations Act 1996
and the defence duties of disclosure. The proposals include:
(1) Replacing the existing two-stage test for the disclosure of unused prosecution
evidence under the CPIA, with a single objective test which requires the prosecution
to disclose to the defence unused material that has not previously been disclosed and
which might be considered reasonably capable of undermining the prosecution case or
assisting the accused.
(2) Increasing the detail to be specified in the defence statement to be served before
trial.
(3) Requiring the judge to warn the accused about the consequences of failing to
comply with the requirements of serving a defence statement or the contents of the
defence statement.
(4) Giving power to the court to order the accused to give a defence statement and if
necessary, direct that the statement should be edited to exclude any inadmissible
evidence. The purpose of this provision is to put the defence and the prosecution on
an equal footing.
(5) Giving the court the power to order the disclosure of the defence statement to the
jury and direct that the statement should be edited to exclude any inadmissible
evidence.
(6) In advance of the trial, a requirement that the accused would have to give to the
prosecution and to the court a notice containing the details of witnesses that he intends
to give evidence at the trial and to disclose details of experts consulted but whom it is
not intended to call to give evidence.
Chapter 11-Burdens and Standards of Proof
One of the most important developments in criminal evidence since the
implementation of the Human Rights Act 1998 has been a number of challenges
under Article 6 (the right to a fair trial) against the imposition of a legal burden on the
defendant to prove one or more facts in issue. Examples of such reverse burden
clauses include the Homicide Act 1957 where Parliament has expressly provided that
the defence has the legal burden of proving diminished responsibility under section 2
or acting in pursuance of a suicide pact under section 4. The same principle applies to
an offence under section 2 Prevention of Corruption Act 1916 where the defence has
to prove that the accused did not receive money, gifts etc corruptly and under section
1 Prevention of Crime Act 1953 where the prosecution proves that the defendant had
in his possession an offensive weapon in a public place, the defence then has the legal
burden of proving lawful authority or reasonable excuse.
During the last year a number of other cases have been before the Court of Appeal
and Divisional Court on the compatibility of reverse burden clauses with Article 6 of
the European Convention on Human Rights 1950.
R v Carass [2002] 2 CR App R 4
C had been charged with one count of conspiracy to defraud the creditors of a
company and four counts of concealing the debts of a company in anticipation of
winding up, contrary to section 206(1)(a) Insolvency Act 1986. C appealed against the
ruling of the trial judge under section 7 Criminal Justice Act 1987 that both
indictments should be joined. In determining that the counts should be severed, the
judge had assumed that section 206(4)(a) of the 1986 Act, under which it is a defence
for a person charged with conspiracy to defraud to “prove that he had no intent to
defraud” imposed a legal burden on the accused. In addition to the decision of the trial
judge being reversed, C sought a declaration that section 206(4)(a) should be declared
incompatible with the Human Rights Act 1998 as an infringement of his right to a fair
trial under Article 6 European Convention on Human Rights 1950. The issues before
the court were whether it had jurisdiction to entertain the appeal and, if it did, whether
section 206(4)(a) was incompatible with the right to a fair trial.
Allowing the appeal, the Court of Appeal applied the leading decision of the House of
Lords in R v Lambert [2001] 3 All ER 577. It came to the conclusion that section 206
(4) had to be read down to impose an evidential burden of proof on the defendant only
for it would otherwise amount to a violation of Article 6 (2) of the ECHR. In coming
to this conclusion, the Court of Appeal concluded that an intention to defraud was the
gravamen of the offence and, as such, it was wrong in principle to require the
defendant to disprove what was an important element of the offence. The Court of
Appeal could see no justification in terms of a threat posed to society for imposing a
legal burden of proof on the defendant to effectively prove his innocence.
Drummond [2002] 2 Cr App R 25
The defendant was prosecuted under section 3A Road Traffic Act 1988 of driving
with excess alcohol was commenced against the defendant. The Crown alleged that
the defendant had struck a scooter killing the passenger and seriously injuring the
driver. The accused maintained that he had been aware that his car had struck
something, but that, on seeing nothing, he had driven on. On arriving home the
defendant stated that his wife had given him two measures of gin to calm his nerves.
He later called the police and was arrested. He told the police that before beginning
his journey he had consumed some wine with a meal and that his wife had given him
the gin. Two samples of breath had been taken both of which had given a reading of
twice over the legal alcohol limit. Under section 15(2) Road Traffic Offenders Act
1988, it is assumed that unless the accused can prove otherwise, the proportion of
alcohol in his breath at the time of the offence would not be less than the specimen.
The defendant submitted that having to prove that it was the consumption of the
alcohol after the alleged offence that caused him to be over the limit was an
infringement of the presumption of innocence under Article 6(2) of the Convention.
In dismissing the appeal, the Court of Appeal held that the legislative interference in
section 15(2) of the 1988 Act with the presumption of innocence was justified and no
more than was necessary. A charge of driving while over the limit did not require the
court to determine the accused’s intent. Conviction was based on an accurate
scientific test. By drinking after the alleged offence, the accused was making the
scientific test potentially unreliable. Furthermore evidence concerning the
consumption of alcohol after the alleged offence was within the knowledge or
obtainable by the accused rather than the Crown. The burden of proof on the accused
was a persuasive one and the decision in Lambert did not require all persuasive
burdens to be read down to become evidential burdens.
L v DPP [2002] 1 Cr App R 32
In this case, the Divisional Court considered argument relating to section 139 of the
Criminal Justice Act 1988. The defendant had been found in possession of a flick
knife. Under section 139, it is an offence for a person to be found in possession of a
bladed instrument. However, it is a defence for a person to prove that he had good
reason or lawful authority to be in possession. Does section 139 conflict with Article
6? The Divisional Court concluded it did not. Of significance in this regard was the
fact that there was a strong public interest in ridding our streets of bladed instruments.
Furthermore, the defendant was being asked to prove something that was clearly
within his own knowledge. A distinction was drawn between the definitional elements
of this offence and of being in possession of a controlled drug contrary to section 5(3)
of the Misuse of Drugs Acct 1971, which had been the allegation in R v Lambert.
Section 139 required the prosecution to prove that the defendant was knowingly in
possession of a bladed article. Section 5 (3) however merely required the prosecution
to prove the defendant knew he was in possession of something which, as it happened,
turned out to be a controlled drug. Under section 28 (2) of the Misuse of Drugs Act
1971 it was for the defendant to prove he did not know nor had any reason to suspect
the package contained drugs. In R v Lambert, the House of Lords concluded that it
was proof of the defendant's knowledge as to the contents of the particular package in
his possession that justified the imposition of a lengthy custodial sentence in the event
of conviction. Requiring the defendant to disprove his knowledge carried the risk that
a jury could convict where it felt there was a doubt about the defendant's knowledge
but where it was not convinced on the balance of probabilities that the defendant's
account was true. By contrast, in this case, the Divisional Court did not consider that
the imposition of a legal burden of proof under section 139 made a great deal of
practical difference to the defendant since a "good reason" for being in possession of a
bladed article would often be obvious from the circumstances and does not require
proof in the strict sense. Furthermore, conviction under the section attracted a limited
custodial sentence. Overall, taking these factors into account, the Divisional Court
considered the imposition of a legal burden of proof on the defendant was entirely
compatible with the presumption of innocence for this offence. It was both justified
and proportionate.
S v London Borough of Havering (Court of Appeal) [2002] EWCA 2558
In this case S was charged with selling counterfeit merchandise contrary to section 92
of the Trade Marks Act 1994. The statute makes it an offence for a person, who with a
view to gain for himself or with intent to cause loss to another and without the consent
of the proprietor applies to his goods etc…a registered trademark. It is a defence
under section 92 (5) for such a person to show that he believed on reasonable grounds
that the use of the sign was not an infringement of the registered trademark. On
conviction in the Crown Court the offence carries a term of imprisonment of up to 10
years and an unlimited fine. The matter came before the Court of Appeal as a
preparatory hearing on a point of the law, that being whether the section imposed a
legal burden of proof on the defendant and whether it thereby constituted a violation
of Article 6.
The case is interesting from the point of view that the Court of Appeal were prepared
to dispose of the question of compatibility on the basis of the construction of the
particular statutory provision. Construing the section, and having regard to its passage
through Parliament, the Court of Appeal concluded that Parliament had clearly
intended to impose a legal burden of proof on the defendant. There was extensive
consideration of whether the provisions of section 92 (5) constituted an ingredient of
the offence or a special defence. The latter are much easier to justify in terms of the
Human Rights Act 1998, as the primary responsibility for proving an accused's guilt
remains on the prosecution (see the judgment of Lord Hope in R-v-DPP ex parte
Kebilene [2001] 2 AC 326). The Court of Appeal concluded that Parliament had
chosen to define the offence in terms of strict liability (dishonesty not being a prerequisite of the offence) for good reasons: promoting a legitimate economy and
consumer protection. Section 92, it concluded, was a regulatory provision and having
regard to the policy behind it and the mischief at which it was aimed, the provisions
of section 92 (5) could not be considered as being essential element of the offence. As
such Article 6 (2) had no application. One can argue that the construction approach is
contrary to the observations made by Lord Steyn in his judgment in R v Lambert
where at paragraph 35, he states: The distinction between constituent elements of the crime and defensive issues will sometimes be
unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is
adopted: a true constituent element can be removed from the definition of the crime and cast as a
defensive issue whereas any definition of an offence can be reformulated so as to include all possible
defences within it. It is necessary to concentrate not on technicalities and niceties of language but
rather on matters of substance. I do not have in mind cases within the narrow exception "limited to
offences arising under enactments which prohibit the doing of an act save in specified circumstances or
by persons of specified classes or with specified qualifications or with the licence or permission of
specified authorities"; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; section 101 of the
Magistrates' Courts Act 1980. There are other cases where the defence is so closely linked with mens
rea and moral blameworthiness that it would derogate from the presumption to transfer the legal
burden to the accused, e.g. the hypothetical case of transferring the burden of disproving provocation
to an accused………….. In R v Whyte (1988) 51 DLR 4th 481 the Canadian Supreme Court rejected an
argument that as a matter of principle a constitutional presumption of innocence only applies to
elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed (at
493):
""The real concern is not whether the accused must disprove an element or prove an excuse, but that
an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a
breach of the presumption of innocence. The exact characterization of a factor as an essential element,
a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of
innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required
to prove some fact on the balance of probabilities to avoid conviction, the provision violates the
presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of
the trier of fact as to the guilt of the accused."
I would adopt this reasoning. In the present case the defence under section 28 is one directly bearing
on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum
sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under
section 28 is in strict law regarded as a pure defence.
The absence of a mens rea element to the offence under the Trade Marks Act 1994
enabled the Court of Appeal to distinguish it from the case of R v Carass and R v
Lambert.
For the sake of completeness (and on the assumption that the construction argument
might not be enough to ultimately dispose of the appeal) the Court of Appeal went
onto consider whether section 92 (5) needed to be read down so as to impose an
evidential burden of proof only on the defendant. It answered this in the negative. In
doing so the following factors were felt to be significant: 
The imposition of a legal burden of proof was justified and proportionate. The
section was directed towards a legitimate public aim that included protecting the
consumer from harm.

The matters which an accused was required to prove were likely to be matters
peculiarly within his knowledge.

The efficiency and regulatory of prosecutions under the Act would be severely
compromised if the prosecution was required to prove the absence of a trader's
belief on reasonable grounds that he was not infringing a trademark.

Offences under this section are more of a regulatory nature and though conviction
in theory could carry a prison sentence of 10 years most prosecutions are
conducted summarily before magistrates where the most likely sentence would be
a fine or discharge.
Davies v Health and Safety Executive [2002] EWCA Crim 2949
This case concerned a prosecution under sections 3 and 33 of the Health and Safety at
Work Act 1974. An employer is required under the Act to ensure, so far as it
reasonably practicable, that persons not in his employment, who may be affected, are
not exposed to risks to their heath and safety. Section 40 of the Act provides it shall
be for the accused to prove that it was not reasonably practicable to do more than was
in fact done to satisfy an employer's duty under the Act. This constituted the
imposition of a legal burden of proof on the defendant. Was it justified and
proportionate in this case? The Court of Appeal held it was. The offence under
consideration was regulatory in its nature and therefore not truly criminal. It did not
seek to punish or condemn wrongful conduct and was directed more towards the
prevention of harm. Conviction under the Act did not carry the risk of imprisonment.
The prosecution had the onus of proving the employer was the person who owed the
duty of care under the Act and that the safety standard laid down by the Act had been
breached. Such regulatory legislation had a vital role in society in protecting health
and safety of members of the public. The imposition of a legal burden was necessary
in view of the fact that the investigatory powers of the Health and Safety Executive
are not as extensive as those of the police and quite often it will be the defendant who
is best placed to know when and what he has done to avoid the risks the legislation is
directed at.
R on the application of Grubdy and Co Excavations Ltd and the Forestry
Commission [2003] EWHC Admin 273 (QB)
In this case, the Divisional Court, in an application for judicial review, was required
to consider the compatibility of section 9(1) of the Forestry Act 1967. This section
makes it an offence to fell trees without a licence. Applying section 101 Magistrates
Court Act 1980 and the principles set out in R v Edwards [1975] 1 QB 27 and R v
Hunt [1987] AC 352 the Court of Appeal rightly concluded that the section placed a
legal burden of proof on the defendant to prove he had the necessary licence. As such
the imposition had to be justified and proportionate.
The Divisional Court concluded that it was justified, as it would be impractical for the
Commission to disprove every category of exemption. Furthermore, applying the
factors identified in Davies (above), the imposition of a legal burden was a
proportionate response. This was a regulatory offence. The system of licensing was
intending to protect our arboreal heritage and in practical terms, the policy behind the
legislation would only work if the burden were on the defendant as the facts upon
which his defence was based would be within his knowledge.
Sheldrake-v-DPP [2003] EWHC 273
This is the latest decision on reverse burden clauses and perhaps one of the most
controversial. It concerns a challenge to section 5 of the Road Traffic Act 1988.
Section 5 makes it an offence for a person to be in charge of a vehicle whilst over the
prescribed alcohol limit. Section 5(2) provides it is a defence for a person charged to
prove that at the time of his alleged commission of the offence the circumstances were
such that there was no likelihood of his driving whilst the proportion of alcohol in his
body remained likely to exceed the prescribed limit. In this case, the defendant who
had been found slumped over the steering wheel and was four times over the legal
limit was charged under section 5. His defence was that he had no intention to drive
until such time as it was safe for him to do so. The magistrates concluded that section
5 (2) imposed a legal burden of proof on the defendant to prove on the balance of
probabilities that he had no intention to drive. The defendant was convicted and
appealed to the Divisional Court by way of case stated. The majority (Lord Justice
Clarke and Mr Justice Jack) concluded that section 5 (2) imposed a legal burden of
proof on the defendant which had to be read down so as to impose an evidential
burden only. The minority, Mr Justice Henriques, concluded that whilst section 5 (2)
imposed a legal burden of proof on the defendant this was justified and proportionate
and did not therefore violate Article 6.
Section 5 is a commonly prosecuted offence in magistrates' courts. The reading down
of the section will have significant practical consequences for the prosecution, who, in
accordance with this decision, must now prove beyond reasonable doubt that the
defendant did not in fact have no intention to drive (a double negative) where the
defendant raises a section 5 (2) defence. What factors led each of the judges to their
conclusions?
The majority found the reasoning in R v Lambert to be significant. It was argued that
the substance of the offence was set out in section 5 and that the prosecution had the
burden of proving only that the defendant was in charge of his vehicle whilst over the
prescribed alcohol limit. The defendant's likelihood of driving was therefore not an
essential element of the offence. Applying the dicta of Lord Justice Steyn in Lambert
(highlighted above in the context of S v London Borough of Havering), the majority
concluded that the likelihood of driving was the gravamen of the offence under
section 5. If there was no likelihood of the accused driving while over the limit, he
does not commit an offence under section 5 (2). It was this element of the offence (the
risk that such a defendant had or might have formed an intention to drive) which
could be punished with up to three months imprisonment. Consequently, the
imposition of a legal burden on the defendant to prove that there was no likelihood of
his driving meant that he could be convicted of the offence under section 5 where
magistrates' concluded that it was more probable than not that he might drive but
where they were not sure, beyond reasonable doubt, that there was a likelihood of his
driving. Section 5 of the Road Traffic Act 1988 therefore violated the presumption of
innocence. In these circumstances the imposition of a legal burden of proof had to be
directed towards a legitimate aim. The majority concluded that it was in the sense that
unless the accused was required to advance a defence of his having no intention to
drive, it would be difficult for the prosecution to refute at trial. The crucial question
however was whether an evidential burden would suffice. If there was no pressing
necessity to impose a legal burden of proof, section 5(2) would have to be read down
to impose an evidential burden of proof on the defendant only. This would require the
accused to adduce some evidence of the fact there was no likelihood of his driving
until such time as he would have been under the limit and for the prosecution then to
prove beyond reasonable doubt that there was a real risk (a risk that could not be
ignored) of his driving whilst over the limit.
It was forcefully argued that to impose an evidential burden of proof only on the
defendant would undermine the purpose behind section 5 as it would make
prosecutions under section 5 considerably more difficult in practical terms. The
person best placed to know whether he had had or would form an intention to drive
whilst still over the legal alcohol limit was the defendant. The majority, who did not
see the imposition of an evidential burden as providing an insuperable obstacle for the
prosecution to overcome, rejected this argument. Lord Justice Clarke observed that
there are many offences requiring the prosecution to prove the state of mind of an
accused at a particular time. Although the imposition of an evidential burden would
make the prosecution's task of securing a conviction harder, the greater public interest
in ensuring that the innocent are not convicted outweighed the greater difficulty of
securing a conviction. Magistrates could be trusted to weigh up the evidence to reach
a conclusion as to the likelihood of the defendant's driving beyond reasonable doubt.
The court was referred to all of the recent authorities highlighted above, but
concluded that they were of limited assistance as each statute under scrutiny gives rise
to different considerations. The majority distinguished the reasoning in R v
Drummond (above), which raised a different aspect of the drink-driving legislation
under section 3 of the Road Traffic Act 1988. The requirement to prove the intention
to drive, as part of the definition of the offence under section 5 (2), meant that the
factors highlighted in R v Drummond were of limited application in this case. Further,
the majority rejected the argument that section 5 (2) was largely a regulatory offence,
in other words, not truly criminal. In this regard it was pointed out that the imposition
of a custodial sentence for a first time offender would be very rare. The majority
concluded that public opinion of drink-drivers had changed over the years and that
drink-driving related convictions do carry a moral stigma. Individuals will have their
own opinion on this last point. For these reasons the majority could find no pressing
necessity for imposing a legal burden of proof as opposed to an evidential burden
only.
In the minority, Mr Justice Henriques concluded that whilst section 5 (2) did derogate
from the presumption of innocence it was both justified and proportionate. He felt that
the imposition of a three month sentence of imprisonment was a world apart from the
potential of a life sentence for conviction on drug dealing, which of course had been
the offence under consideration in R v Lambert. The consequences therefore of a
defendant failing to establish his innocence on the balance of probabilities were no
where near as draconian. Mr Justice Henriques felt that the factors identified in R v
Drummond were applicable to the circumstances in this particular case. The important
elements of the offence had to be proved by the prosecution and the defendant would
have little trouble in discharging the onus upon him as the facts he would be relying
on in support of his defence would be facts particularly within his knowledge.
Furthermore, Mr Justice Henriques felt the section was directed at protecting the
public from the social evil associated with drink-driving and that the imposition of an
evidential burden only would seriously undermine the protection afforded by the
section as it would make prosecutions considerably more difficult. How much would
the prosecution have to anticipate in evidential terms in advance of trial? Would the
prosecution need to go to the trouble of instructing an expert witness in advance in
case the defendant's rate of absorption of alcohol became an issue? To what extent
would the prosecution feel it needed to adduce factual evidence to rebut an assertion
made by a defendant that he had, for example, called a taxi to take him home? Mr
Justice Henriques considered one possible consequence of imposing an evidential
burden of proof only could be a decision by police to allow a defendant to actually
drive his vehicle enabling him to be charged under section 3 of the Act as opposed to
section 5. This of course would pose significant risks for both the driver and other
road users. In a strongly worded paragraph 128 of his judgement, Mr Justice Henrique
sums up his concerns by referring to the opportunities that such a change in the law
would pose to ingenious defendants and their advisors:
“My concern relates to the great majority of persons in charge of vehicles whilst over the prescribed
limit. Facing an evidential burden only, they may well decide to plead not guilty having persuaded
themselves that there was no likelihood of their driving. The ingenuity of defendants and their advisers
in confronting the breathalyser legislation has been spectacular. It has encompassed offering blood
samples from big toes, asserting that drinks have been laced, that mouthwash has contained high levels
of alcohol, and even blood samples have been swallowed. In its read down form I anticipate
difficulties for prosecutors and courts alike. The law as presently formulated has created few
difficulties and the very few appeals relating to in charge offences….which would seem to indicate that
a proper balance had been struck with a legal burden placed upon the defendant”.
On the case law, it appears that in deciding the compatibility of reverse burden
clauses with the presumption of innocence and the right to a fair trial, a case-by-case
approach is being taken. The case law also shows two further trends. First, the
interpretive obligation under section 3 Human Rights Act 1998 is applied
inconsistently by the courts and second, that by reaffirming in some statutes that it is
permissible for a legal burden to be imposed on the accused, the Court of Appeal is
going against some powerful criticism of reverse burden clauses including the
Criminal Law Revision Committee in its Eleventh Report.
We can expect further appeals as other statutory sections that impose a legal burden of
proof (and there are a lot of them!) are challenged. General principles are however
emerging. In deciding whether the imposition of a legal on the accused can be
justified, the courts appear to take into account the following factors:
-
-
The precise ingredients of the offence which the prosecution is required to
prove (a requirement on the defendant to prove the absence of knowledge or
intent is considerably more vulnerable to challenge);
the strength of the ‘public interest’ in the activity the offence is seeking to
make unlawful;
the severity of the penalty that may be imposed under the offence;
whether the facts that the accused is required to prove are within the accused’s
exclusive knowledge;
whether the offence is regulatory in its nature.
Chapter 12-14-Statutory exceptions to the hearsay rule in criminal cases
The jurisprudence of the ECHR in relation to the use of hearsay evidence at criminal
trials continues to develop.
SN v Sweden-2/7/02[2002] Crim LR 831
This case concerned an appeal by a Swedish national who had been convicted of
sexually abusing a child. As part of the police investigation and before the applicant's
arrest the child M, had been interviewed by an experienced police officer. M's parents
and a representative from the Swedish equivalent of social services were present in an
adjoining room. The interview was recorded. The applicant was subsequently
questioned and made aware of the allegation. He was given a copy of the preliminary
report into the investigation and was told he could request additional interviews and
other investigatory measures. The applicant's counsel requested the child be
interviewed a second time to clear up ambiguities in the child’s evidence. The
interview was set up but the public prosecutor, who was unable to attend at the last
minute, objected to the presence of one counsel only in the interview. The decision
was taken to allow the interview to go ahead. Counsel for the applicant was not
present in the actual interview room but did discuss with the officer the questions that
he wished to see addressed. A transcript of the interview was given to the applicant
who was subsequently charged with several offences of sexual indecency. He was
convicted following a trial at which the first interview was shown and the transcript to
the second interview was read out. Under Sweden's Judicial Procedure Code, children
below the age of 15 do not normally give evidence in person before a court.
The ECHR reiterated that an accused's right to secure the appearance of witnesses in
court is not an absolute right. The Court noted that prosecutions concerning sexual
abuse, especially those involving children, raise special difficulties. Victims of sexual
abuse have the right to respect for their private life however; this has to be balanced
against the need to secure the rights of a defendant in ensuring a fair trial. There had
to be sufficient safeguards to counterbalance the obstacles faced by the defendant.
Had there been sufficient safeguards in this case? The child's evidence had been the
main evidence against the applicant and in this regard an assessment of the child's
credibility had been a crucial consideration for the court. Much was made of the fact
that the applicant's counsel could have asked for the second interview to be postponed
and videotaped. He had been able to put questions to the child through the
investigating officer and had indicated afterwards that he was satisfied with what had
occurred. The child's videotaped interview had been played to the trial court and
appeal court. In these circumstances, the court had been able to make an assessment
of the child's credibility and the applicant had been afforded the opportunity to
challenge what the child had said. The applicant had therefore had a fair trial.
The judgment of the ECHR in this case as in many other instances, depend for the
most part on the facts. Clearly the Convention allows the use of hearsay evidence
providing the defendant has sufficient safeguards to effectively challenge the evidence
either through pre-trial procedures or at trial. Earlier case law had suggested a
conviction should not in principle be based solely or mainly on hearsay evidence-this
decision arguably suggests otherwise.
The outcome in the Swedish case may be contrasted with an earlier an earlier decision
of the ECHR in P.S. v Germany -20th December 2001. The applicant in this case, had
been convicted of sexually abusing a pupil. The child was said by her mother to be
emotionally disturbed by the events. At no stage did a judge ever question the child
nor was the applicant ever afforded the opportunity of having the child's demeanour
during questioning observed. The main evidence at the trial had come from the child's
mother. The applicant request to have the child examined by a psychologist had been
refused. During the appeal proceedings the court appointed a psychologist who
concluded that the child was a credible witness. At the insistence of the girl's parents
the girl did not appear in person at the appeal court. Taking all the above into account
the ECHR's unsurprisingly came to the conclusion that the applicant had been denied
the right to a fair trial. Whilst the judicial process had been right to be concerned
about the child's mental well-being the safeguards afforded to the defendant had been
inadequate. The evidence of the psychologist was dismissed by the Court since it had
been prepared some eighteen months after the original accusation.
The observation is made in Chapter 14 that the safeguards in relation to the admission
of hearsay evidence contained within the Criminal Justice Act 1988 and in section 78
of PACE, are sufficient to ensure English law is compliant. So far as vulnerable
witnesses are concerned their right to be heard in the criminal process has been
considerably strengthened by the special measures available with the implementation
of the Youth Justice and Criminal Evidence Act 1999 (see below)
Proposals for reforming the hearsay rule contained within the Criminal Justice Bill
2002
The government's specific proposals for reforming the operation of the hearsay rule in
criminal cases are contained within clauses 98-114 of the Criminal Justice Bill 2002.
They substantially comprise the recommendations made by the Law Commission in Law Commission Report 245- Evidence in Criminal Proceedings: Hearsay and
Related Topics. The nature and effect of the Law Commission’s proposals are
covered in Chapter 14. A summary of the provisions follows: Under the Criminal Justice Bill, the exclusionary hearsay rule will continue with
specified exceptions resulting in hearsay evidence being automatically admitted.
Hearsay evidence can also be admitted with the consent of the parties.
Hearsay evidence is re-defined in clause 99 in accordance with the Law Commission's
recommendations covered at the end of Chapter 11.
First-hand hearsay evidence will automatically be admitted under clause 100 provided
the absent witness can be identified and would have been competent to testify on oath.
An explanation for the witness's absence is a condition of admissibility. It must be
proved that the witness is dead, ill, outside the jurisdiction and it had not been
reasonably practicable to secure attendance or the witness cannot be found despite all
reasonable steps having been taken. This automatic exception category will apply to
oral as well as written statements. Once the conditions for admissibility are
established there is no further requirement on the part of the court to exercise its
discretion to admit the statement.
Specific provision is made in relation to frightened witnesses in clause 100 (1) (e) and
1 (4). Such evidence will not be admitted automatically. It will be admitted only with
the leave of the court where it was in the interests of justice to do so having regard to
a list of statutory factors, which includes the court having regard to:  the content of the witness's statement;
 to any risk of unfairness to either party, including how difficult it would be to
challenge the evidence if the person does not give evidence;
 whether a special measures direction under section 19 of the Youth Justice and
Criminal Evidence Act 1999 could be made and;
 any other relevant circumstance.
Fear is widely defined in clause 100.
Under clause 101 business documents will continue to be automatically admitted
providing the document or part of it was created by a person in the course of a trade,
business, profession or other occupation or as the holder of a paid or unpaid office.
The person who supplied the information, referred to as the "relevant person", must
have had or might be reasonably supposed to have had personal knowledge of the
matters dealt with. Where the information is passed from the "relevant person"
through intermediaries, the intermediaries must have received the information in the
course of a business, profession or trade etc.
Statements prepared in contemplation of criminal proceedings will, in accordance
with clause 101 (4) automatically be admitted on the ground of the unavailability of a
witness (clause 100 (2)), with an additional ground for admission; namely that 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. Where there was reason to doubt the reliability of the
statement sought to be adduced under section 101, the court has the power to prevent
its admission.
By virtue of clause 98(1)(d) provision is made for an inclusionary discretion in
relation to every other instance of hearsay evidence not admissible under the Bill, to
be admitted where it would not be contrary to the interests of justice. In taking the
decision to admit the court must have regard to the following factors:
a) how much probative value the statement has (assuming it to be true in
relation to a matter in issue in the proceedings, or how valuable it is for
the understanding of other evidence in the case
b) what other evidence has been given, or can be given on the matter
c) how important the matter is in the context of the case as a whole
d) the circumstances in which the statement was made
e) how reliable the maker of the statement appears
f) how reliable the evidence of the making of the statement appears to be
g) whether oral evidence of the matter stated can be given and, if not why
it cannot
h) the amount of difficulty involved in challenging the statement
The Bill preserves a number of common law exceptions to the hearsay rule, including
res gestae, public documents, confessions etc….clause 102.
The Law Commission expressed itself keen to ensure safeguards should be in place as
regard the admission of all types of hearsay. A number of its proposals find their way
into the Criminal Justice Bill in this regard, including: -the right to challenge the
competence and/ or credibility of an absent declarant-clauses 107 and 108 and giving
the court the power to direct an acquittal or dismiss the charge in a case where the
prosecution's case is based wholly or mainly on hearsay evidence where such
evidence is unconvincing-clause 109.
Further provision is made in relation to previous inconsistent statements, the memory
refreshing rules and previous consistent statements-see later. In each of these
instances where the rules permit the reception of such evidence, the earlier statement
will henceforth be admissible as evidence of facts stated in it. Further provision is
made in relation to the hearsay rule as it affects experts. The decision in R v Abadom
[1983] 1 WLR 126 is placed on a statutory footing.
Chapter 15-The Examination–in-Chief of a Witness
R v Pearce [2002] 1 WLR 1553- The accused’s spouse as a witness for the
prosecution
P appealed against his conviction for murder. At his trial, P’s longstanding cohabitee
had given evidence. It was noted that if she had been his wife, section 80 of the Police
and Criminal Evidence Act 1984 would have made her a competent but not a
compellable witness. P contended that her evidence should have been treated in the
same way as a spouse and maintained that the rationale for rule in relation to a spouse
was to protect family relationships and that the court should assess the substance of
such relationships as well as the form in order to prevent a breach of the right to
family life under Article 8 European Convention on Human Rights.
In dismissing the appeal, the Court of Appeal held that it was not possible to expand
section 80 PACE so as to include partners. If the existing concession were to be
widened it would be difficult to find a logical end point and potentially cause grave
difficulties in the administration of the criminal law. Whilst on one level the evidence
given by P’s partner could be regarded as an interference with her rights under Article
8(1), such interference could be justified under Article 8(2) on the basis that it was
necessary in a democratic society for the prevention of crime.
Competence of a witness under the Youth Justice and Criminal Evidence Act
1999
On 24 July 2002 the new provisions under the sections 53-56 of the Youth Justice and
Criminal Evidence Act 1999 dealing with the test to determine the competence of a
witness to give evidence in criminal proceedings were introduced. The Act’s
provisions are based on the recommendations contained in “Speaking Up for Justice”,
which is the report of the Working Group on Vulnerable and Intimidated Witnesses
(June 1998). The proposals contained in “Speaking Up for Justice” confirmed the
general view that it is regarded as being in the public interest that whenever possible,
the evidence of all witnesses, regardless of age or physical or mental incapacity
should be heard. The Act introduces a range of measures that gives the court much
greater discretion to allow witnesses to give evidence in criminal cases.
Section 53(1) Youth Justice and Criminal Evidence Act 1999 creates the presumption
that all witnesses (whatever their age) are competent to give evidence in criminal
proceedings. The presumption of competence may be rebutted if, under section 53(3),
it appears to the court that that he is not a person who is able to understand questions
put to him as a witness, and give answers to them which can be understood”.
The procedure to be followed where the competence of the witness is challenged is
governed by section 54.
The test for deciding whether the witness may give sworn evidence is governed by
section 55. Under section 55, a competent witness may give sworn evidence provided
the two-stage test in section 55(2) is met. Firstly, the witness should be aged 14 years
or over (this requirement preserves the position under the Criminal Justice Act 1988)
and secondly, the witness must have sufficient appreciation of the solemnity of the
occasion and the responsibility of telling the truth as in the ‘Hayes’ test.
There is a presumption in section 55(3) that a witness who is aged 14 years or more is
competent to give sworn evidence where he satisfies the test of ‘intelligible’
testimony within the meaning of section 53(3) in that he is able to understand the
questions put to him as a witness and to give answers to them which can be
understood.
The most significant change introduced by the 1999 Act is under section 56(1) and
(2), which provide that where a witness of any age is incompetent to give sworn
evidence, the witness may still give unsworn evidence. As well as imposing a
mandatory requirement that a child under the age of 14 shall give only unsworn
evidence, the section permits a person over 14 to give unsworn evidence where he is
competent to testify notwithstanding that evidence is adduced that he does not have a
sufficient appreciation of the solemnity of the occasion and of the particular
responsibility to tell the truth which is involved in taking the oath and the party
seeking to have him give sworn evidence has failed to persuade the court that on the
balance of probabilities, that he has such an appreciation.
Even before the provisions were implemented the Court of Appeal had approved the
premature use of the competence test in the 1999 Act. In D (Video testimony) [2002]
2 Cr App R 36 the trial judge had applied the test of competence from section 53(3)
Youth Justice and Criminal Evidence Act 1999 in deciding whether the video
testimony of witness B in the case should be heard. The trial judge had correctly
applied the test from section 53(3) that a person was not competent to give evidence
in criminal proceedings if it appeared to the court that he was not a person who was
able to understand the questions put to him and give answers which could be
understood.
In deciding that B’s video evidence should be put before the jury, the Court of Appeal
was satisfied that the defendant’s rights had been protected as he could call medical
evidence to challenge B’s capacity to remember, understand and say what had
happened. It was for the jury alone to decide, with the assistance of expert evidence
the truthfulness and accuracy of what B was saying.
Chapter 16 Evidential Issues Arising Out of Cross-Examination and ReExamination
Proposals for Reform
Where the witness has made a previous inconsistent statement
Under the proposals contained in the Criminal Justice Bill, a witness’s prior
inconsistent statement may be admitted to prove the truth of the matters contained in
the statement rather than, as at the present time, being introduced to undermine the
credibility of the other party’s witness in cross-examination-Clause 103.
Rebutting a suggestion of recent fabrication
Under clause 104 of the Criminal Justice Bill 2002, statements admitted in reexamination to rebut an allegation of recent fabrication may be admitted to prove the
truth of the matters contained in the statement rather than, as at the present time, being
introduced to rebut an allegation that the witness has recently fabricated his oral
testimony.
Memory refreshing rule
By virtue of clause 104 (3) a statement made by a witness in a document which is
used by him to refresh his memory while giving evidence and on which he is crossexamined with the result that it is thereby received in evidence, shall be admissible as
evidence of any matter stated of which oral evidence by him would have been
admissible.
Admissibility and value of a witness’s previous consistent statement
Reflecting the philosophy of many of the evidential measures contained in the
Criminal Justice Bill 2002 by liberating many of the traditionally restrictive common
law rules, the Bill contains proposals to relax the general rule preventing the use of a
witness’s prior consistent statement. Clauses 104 will allow a witness’s prior
statement to be admissible to prove matters contained in it provided one of the
following three conditions is satisfied and whilst giving evidence the witness indicates
that to the best of his belief he made the statement and that its contents are the truth: 
the statement identifies or describes a person, thing or place

the statement was made when the matters were fresh in the witness’s memory
but he does not remember them and cannot reasonably be expected to
remember them well enough to give oral evidence of them

the witness claims to be a person against whom an offence has been
committed; the offence is one to which the proceedings relate; the statement
consists of a complaint made by the witness; the complaint was made as soon
as could reasonably be expected after the alleged conduct; the complaint was
not made as a result of threats or a promise; and before the statement is
introduced the witness gives oral evidence in connection with the subject
matter.
Chapter 17-Cross-examination of a complainant in a sexual offence
T and H [2002] 1 All ER 683- Cross-examining the complainant in a sexual offence
– s41 Youth Justice and Criminal Evidence Act 1999
The case concerned consolidated appeals dealing with the questions that can be asked
in cross-examination of a complainant in a sexual offence under section 41 of the
1999 Act. Under section 41 no questions can be asked of a compliant and no
evidence can be given about the complainant's sexual behaviour except with the leave
of the judge. Leave will not be granted under section 41 (4) if the purpose of the
questions is directed at impugning the credibility of the complainant.
T was charged with two offences of indecent assault and one of rape upon his niece.
The alleged offences were supposed to have taken place between 1987-1989 but the
allegations against T were not made until 1999. The defence case was that none of the
offences took place. At a preparatory hearing the defence applied for leave under
section 41 Youth Justice and Criminal Evidence Act 1999 to cross-examine the
complainant as to why she had not made her allegations earlier in that that on two
occasions in the 1980’s she had made allegations of sexual abuse against members of
her family. The trial judge declined to grant leave on the basis that the questions
would be used to impugn the complainant’s credibility and fell within the meaning of
the phrase of “the complainant’s sexual behaviour”. T appealed.
In the second case H was charged with indecent assault on his stepdaughter. The
defendant denied the offence and sought leave under section 41 to cross-examine the
complainant in order to establish that she had made false statements in the past about
sexual and non-sexual matters. The judge ruled that the questions were inadmissible
on the basis that the questions would be used to impugn the complainant’s credibility.
H appealed.
In allowing the appeals the Court of Appeal held that questions about a complainant’s
statements in the past or her failure to complain about alleged sexual abuse were
consistent with section 41 and should not automatically be excluded even though they
were principally directed towards the issue of the complainant’s credibility.
This is the second important case on section 41 following the House of Lords’
decision in A [2001] 3 All ER 1, which was cited by the Court of Appeal in this
decision. Reference was made to Lord Steyn’s statement in A that section 41 was
aimed at preventing the defence advancing at trial the two twin myths that “unchaste
women were more likely to consent to intercourse and in any event were less worthy
of belief”. In interpreting section 41, Lord Steyn went on to suggest that the language
of the section had to be subordinated to “broader considerations of relevance”. The
Court recognised that in cases involving disputed sexual issues between two parties
which took place in private, a distinction between questions directed at credibility and
a fact in issue were almost impossible to draw.
The key point in this case was whether the issues that would be raised in crossexamination came within the meaning of the complainant’s ‘sexual behaviour’ under
section 41(1). Whilst the Court of Appeal recognised that a complainant’s statements
in the past or her failure to complain about alleged sexual abuse could be said to come
within a literal interpretation of sexual behaviour, a purposive approach permitted
such questions to be asked. In A, Lord Craighead had indicated that questions about
the sexual behaviour of the complainant would be admissible if they went to show
that the complainant had a motive to fabricate the evidence, despite the prohibition in
section 41(4) about questions going to credibility.
In coming to its conclusion, the Court further recognised that the victims of crime
have rights as well as defendants and that in sexual cases the complainant has the
right to privacy under Article 8 of the Convention in respect to her previous sexual
conduct and experience. A balancing exercise was required between the rights of the
complainant and the rights of the defendant - this would include recognition of the
gravity of the charges faced and the serious consequences if convicted. On the facts of
both of these cases, the Court was satisfied that an interpretation of section 41 which
allowed questions to be asked about alleged false statements made by the
complainants was required to ensure that the defendant had a fair trial.
Chapter 18- Oral Testimony of Vulnerable, Intimidated or Unreliable Witnesses
On 24 July 2002 a range of special measures under the 1999 Act became available for
a vulnerable or intimidated witness at trials in the Crown Court. The purpose of
applying for a direction is to assist the witness to give evidence.
Under section 16 of the 1999 Act, a ‘vulnerable’ witness is aged under 17 at the time
of the hearing or is suffers from a significant impairment of his mental functioning.
Under section 17 of the 1999 Act, a witness is intimidated where as a result of
emotional trauma he is unlikely to give his best evidence.
The special measures directions that may be made under section 19 and available
from July 2002 are:
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screening the witness, section 23;
giving evidence by a live TV link, section 24;
giving evidence in private, section 25;
the removal of the lawyers’ wigs and gowns, section 26;
admitting a video-recording of an interview as the witness’s evidence-in-chief,
section 27;
video recorded cross-examination or re-examination, section 28;
examination of a witness through an intermediary, section 29;
aids to communication, section 30.
The following measures are subject to pilot schemes began in December 2002:
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video-recorded pre-trial cross-examination;
assistance with communication by the use of an intermediary.
In the magistrates’ court, TV links and video recorded evidence for child witnesses in
certain cases was introduced in July 2002 as part of the first phase. Most of the other
measures will be available in the magistrates’ court by 2003 / 2004 following an
evaluation of how well they are working in the Crown Court.
The Criminal Justice Bill 2002 proposes the greater use of video evidence in chief in
all indictable only and selected either way offences and there is no requirement that
the witness should be vulnerable.
B(K) [2002] EWCA Crim 2140- Video recorded evidence in chief (section 27)
The Court of Appeal held that questions and answers about a child complainant’s
hobbies, aspirations, understanding of truth and lies given during the rapport stage
(preliminary) of a video filmed interview for a trial for indecent assault, even if not
strictly relevant to the issues at trial, were not in any way prejudicial to the defendant
and their admission in evidence was no more objectionable than if the questions had
been asked at the beginning of a ‘live’ examination in chief. A comment made by a
social worker later in the interview that the complainant was “doing really well”
should have been the subject of a direction by the judge that it should not be taken
into account, but it was not necessary to edit the comment out. Also, the re-viewing of
a video filmed interview by the jury was a departure from normal practice which
should only be undertaken in exceptional cases (see Rawlings and Broadbent [1995] 2
Cr App R 222). The judge was wrong effectively to encourage the jury to think that
re-viewing of the video was standard practice. He was also wrong not to identify with
the jury what was exceptional or unusual about the case that justified them in reviewing.
Special measures directions and the Human Rights Act 1998
Camberwell Green Youth Court ex parte D; Camberwell Green Youth Court ex
parte DPP and Others [2003] EWHC 227
The claimants sought judicial review in six linked cases of decisions to refuse or grant
a special measures direction under section 21(5) of the Youth Justice and Criminal
Evidence Act 1999 to allow child witnesses to give evidence in chief by a live TV
link. In those cases where the DPP was the claimant the respective courts had refused
to grant a special measures direction under section 21(5) and the DPP submitted that
the courts had failed to carry out their statutory task under section 21(5). In those
cases where a special measures direction had been made, the claimants challenged the
decision on the basis that their rights under Articles 6 and 14 of the European
Convention on Human Rights 1950 had been breached as the section gave the court
no choice but to give a special measures direction in relation to the evidence of a child
witness in need of special protection.
In dismissing the applications the Divisional Court held that section 21(5) of the Act
did not breach Articles 6 or 14 of the Convention. Section 21(5) required the court to
give a special measures direction to a child witness in need of special protection at an
early stage in the proceedings. Sections 20(2) and section 24(3) of the 1999 Act,
enabling the court to reconsider the manner in which the evidence was to be
presented, provided sufficient safety valves to prevent the defendant’s trial to be
unfair. The courts also had an uninhibited common law power to prevent unfairness.
The proceedings were not unfair simply because the child witnesses and the
defendants were not in the same room. Article 6 (3)(d) was not breached in
circumstances where a party's lawyer could see and hear a witness.
Chapter 20-Character Evidence Relevant to Guilt
R v John Allen Venn [2002] EWCA Crim 236
This recent Court of Appeal decision is included not because of any significant
precedent value but because it serves as a useful illustration of similar fact evidence
principles post DPP v P [1991] 2 AC 447.
The defendant faced four counts of indecent assault two girls. LM was aged between
9 and 12 when the assaults took place. The defendant had been a friend of the girl's
family. His wife had regularly baby-sat LM. On several occasions whilst alone with
the defendant, LM alleged he had rubbed her breasts under her clothing and on one
occasion had placed his fingers in her vagina. The complaints did not come to light
until LM was 12 when she disclosed the facts to her close friends. RB, who was 24
years old, had been approached by the defendant to be a character reference on his
behalf in relation to the complaints made by LM. She did not know LM so there was
no issue of collusion between the two girls. She made two allegations against the
defendant that he had indecently assaulted her on two separate occasions when she
was aged 15 and 16. The defendant had also been a friend of her family. She alleged
that on each occasion, he had touched her breast over her clothing. In relation to LM's
allegations, the defendant denied them completely. In relation to RB's allegation he
maintained his contact on the earliest alleged occasion had been innocent. He denied
the later allegation of touching. Despite a request by the defendant for separate trials
in relation to the two sets of allegations, the trial judge concluded there was a
sufficient nexus between them for them to be joined under rule 9 of the Indictment
Rule. The trial judge very carefully summed up the position for the jury. The
defendant was convicted and appealed to the Court of Appeal in part on the basis that
it had been wrong for the trial judge to allow the two sets of allegations to be joined as
they did not fall within the principle enunciated in DPP v P.
Counsel for the defendant argued on appeal that the common features identified by
the trial judge were not distinctive and that there were a number of differences of
substance between the two sets of allegations. LM was a pre-pubescent girl, RB had
been post-pubescent. The touching in RB's case had been over her clothing and there
was no allegation of digital entry into her vagina. Consequently the prejudice of
allowing the jury to try both allegations together greatly exceeded the probative value
of the evidence.
In the judgment of the Court of Appeal, Lord Justice Potter speaks of the law in this
area as having been "freed from the notion of a litmus, or all-purpose, test of "striking
similarity" as the touchstones of admissibility" as a result of the decision in DPP v P.
Consequently the balance to be struck between relevance and prejudice would vary
from case to case depending on the issues to which the evidence related. The
admission of similar fact evidence remained a rule of law as opposed to a matter of
discretion with its broad and contextual nature offering the trial judge a greater degree
of latitude in the assessment of whether a combination of features, not striking in
themselves, amounted to a sufficient connection for the purpose of the rules. Overall,
the Court of Appeal felt the judge had reached the correct decision in this case. The
relevance of the evidence had been directed at the question of whether the evidence of
each girl was true. This had been a borderline case but the trial judge had got the
balance between probative force and prejudice right. In each case the defendant had
been a friend of the girls' families. His method of approach had been the same and the
nature of the assault and breach of trust were similar in character. The combined
effect of the accusations similar in substance from two different witnesses, who did
not know each other, meant that the allegations were less likely to have been made up
or mistaken.
Chapter 21-Character Evidence Relevant to the Credibility of the Defendant as a
WitnessR v Corelli [2001] EWCA Crim 974
Please see coverage of this case in the context of Chapter 6. It raises the question of
whether a co-accused's spent convictions have to be revealed as a result of the coaccused's loss of shield under 1 (f) (iii) of the Criminal Evidence Act 1898.
Evidence of the accused’s character – proposals for reform under the Criminal
Justice Bill 2002
Amongst the Criminal Justice Bill’s most controversial measures are those relating to
reforming the evidence that can be heard about the defendant’s bad character and
convictions .The Government proposals for reform of this area are contained in
Clauses 81-97. The government maintains its proposals are informed by the Law
Commission’s Report "Evidence of Bad Character in Criminal Proceedings" (Report
No. 273) and the Auld Report. Its provisions are intended to provide a comprehensive
set of rules for the admissibility of evidence of bad character in respect both of
witnesses and defendants. The existing common law rules will be abolished and other
statute law substantially repealed.
The government has chosen not to adopt the wholesale principled reforms advocated
in the Law Commission’s Report No 273. Instead it proposes to considerably relax the
rules relating to the admissibility of a defendant’s bad character, maintaining a
general exclusionary rule with considerably wider exceptions. The exclusionary rules
would include non-defendants.
Bad character is defined under the Bill to include not only previous convictions but
evidence that the accused has behaved or is disposed to behave in a way that, in the
opinion of the court, might be viewed with disapproval by a reasonable person.
In relation to non-defendants, clause 83 adopts the recommendations of the Law
Commissions in its Report number 273. Evidence of the bad character of a nondefendant will only be admitted with leave if it has important explanatory value or
substantial probative value-see Chapter 21 for consideration of these terms.
In relation to a defendant’s bad character, the government proposes in clause 81 (1)
that such evidence will be admissible in the following circumstances: -.
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a
question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is evidence of the defendant’s conviction for an offence of the same description,
or of the same category, as the one with which he is charged,
(e) it is relevant to an important matter in issue between the defendant and
the prosecution,
(f) it has substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant,
(g) it is evidence to correct a false impression given by the defendant, or
(h) the defendant has made an attack on another person’s character
Clause 81 (3) requires the court not to admit evidence under 1 (d), (e) or (h), if the
defendant applies to have such evidence excluded and it appears to the court that the
evidence would have such an adverse effect on the fairness of the proceedings that it
ought not to be admitted.
Important explanatory value in clause 81 (1) (c) is defined in clause 85 as evidence
without which, the court or jury would find it impossible or difficult properly to
understand other evidence in the case, and whose value for understanding the case as
a whole is substantial.
Offences of the same description or same category under clause 81 (1)(d) will be such
if the statement of the offence in an information or indictment would, in each case be
in the same terms; or they belong to the same category of offences prescribed for the
purposes of this section by an order made by the Secretary of State. This is an
extension of the present similar fact evidence rule without any of the present
safeguards.
Matters in issue between the defendant and prosecution under clause 81 (1)(e) are
defined in clause 87 to include (a) the question whether the defendant has a propensity
to commit offences of the kind with which he is charged, except where his having
such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where
it is not suggested that the defendant’s case is untruthful in any respect.
Matters in issue between the defendant and co-defendant under clause 81(1)(f)
include under clause 88, evidence which is relevant to the question whether the
defendant has a propensity to be untruthful is admissible on that basis under section
84(1)(f) but only if the nature or conduct of his defence is such as to undermine the
co-defendant’s defence.
The giving of a false impression by the defendant under clause 81 (1)(g) includes,
under clause 89, the making of an express or implied assertion which is apt to give the
court or jury a misleading impression about the defendant. This can include the
defendant's conduct, which includes his dress or appearance. The evidence sought to
be adduced to rebut such an impression must have probative value in correcting it. A
false assertion is not confined to the defendant giving evidence at his trial. It extends
to an assertion made by a defendant whilst being questioned under caution or on being
charged and covers an assertion made by a witness called by the defendant either in
direct examination, cross-examination or in the form of a hearsay statement.
A defendant is defined as attacking the character of another person under clause 90 if,
he adduces evidence attacking the other person’s character or he asks questions in
cross-examination that are intended to elicit such evidence, or are likely to do so. The
defendant can keep his character out of the jury's hearing if he withdraws such
assertions or disassociates himself from it. The imputation can also be made during
questioning under caution and on being charged. A defendant can attack another
person's character by suggesting that the witness has committed an offence or has
behaved or is disposed to behave in a way that reasonable people would view with
disapproval.
Provision is made under clause 91 for a trial judge to direct an acquittal where the
court is satisfied that evidence admitted under clause 81(1) (c) to (h) is contaminated
such that it would render any subsequent conviction unsafe.
Finally, clause 92 abolishes the rule that convictions for offences when aged under 14
are to be disregarded when deciding whether an adult defendant is of bad character.
In accordance with clause 93 a court must give reasons for any ruling it makes under
the provisions relating to character evidence.
The proposals on character evidence are controversial. They widely extend the
boundaries of admitting evidence of a defendant's bad character whilst providing few
safeguards to the defendant. There is no searching requirement for courts to assess the
true relevance of the bad character evidence which the Bill will permit a court to
receive; only the vaguest reference to judge's not giving leave to adduce such
evidence if it would adversely affect the fairness of the proceedings. These proposals
do not answer many of the criticisms of the current law expressed in the Law
Commission's report. In many ways they accentuate some of the current problems.
For those defendants who happen to have previous convictions but whom, as a
necessary part of their defence, need to expose a prosecution witness’s wrongdoing in
some respect, not only will the defendant require the leave of the court to do this, he
will also have his previous convictions exposed with all the likely prejudice that this
will engender.
Chapter 23-The Burden of Proof
Clingham and Kensington and Chelsea LBC: R v Manchester Crown Court, Ex
parte McCann and Others [2002] 4 All ER 593-Standard of proof for obtaining
ASBO’s
The House of Lords held that proceedings for obtaining anti social behaviour orders
(ASBO's) under the section 1 of the Crime and Disorder Act 1998 are civil
proceedings and not criminal proceedings and do not therefore attract the specific
components of the right to a fair trial under Article 6 (2) and (3). In view of the
seriousness of the matters involved in such orders the heightened civil standard of
proof was held to apply. Lord Steyn agreed that the heightened standard of proof in
civil cases and the criminal standard of proof are virtually indistinguishable.
Chapter 25- Disclosure
McNally v Chief Constable of Greater Manchester Police [2002] 2 Cr App R 37 Public Interest Immunity-Disclosure of an informant's identity in civil proceedings
In McNally, the Court of Appeal held that in the light of the Human Rights Act 1998,
a judge exercising discretion to admit or exclude evidence concerning the identity of a
police informer in civil proceedings should balance the conflicting public interests in
the protection of a police informer with the need to ensure a fair trial by reference to
the particular facts of the case. In rejecting the chief constable’s submission that the
public interest in the protection of informers should prevail over any countervailing
interest save in the exceptional circumstances set out in D v NSPCC [1978] AC 178
(namely the need to avoid a miscarriage of justice where liberty was at stake), Auld
LJ considered that the law had moved on and had received a decisive impetus towards
a more case-specific approach with the advent of human rights. In undertaking the
balancing process judges in civil cases where an individual's liberty is at stake, the
Court of Appeal felt that trial judges ought to give "considerable weight to the public
interest in the protection of informers." On the facts, the trial judge correctly decided
that the public interest required that questions should be asked to ascertain whether X
was a police informer.
The decision in McNally confirms that there is no longer a rule which prohibits
disclosure subject to those specified circumstances where the court might exercise
discretion to order disclosure, where, for example, the defendant’s liberty is at stake
or where the informant consents and the public interest will not be harmed. As Auld
LJ confirms in McNally, the impetus for this change has come from the European
Convention –although Convention case law recognises that it is not always in the
public interest for an informant’s identity to be disclosed- see Jasper v UK [2000] 30
EHHR 441.
In civil cases where the suspect’s liberty is not at stake, when exercising discretion,
the court will balance the public interest in protecting individual informers as a class.
Of equal importance however is the relevance of the information to the claimant’s
case, which was an important consideration in the McNally case for the court ordering
disclosure.
Chapter 26-The Operation of Private Privilege
Al Fayed and Others v Commissioner of Police for the Metropolis and Others
[2002] The Times 17 June
The Court of Appeal reaffirmed the well-established position that where privileged
documents were mistakenly disclosed for inspection by one party to litigation, in
circumstances in which it would not have been obvious to a reasonable solicitor that a
mistake had been made, the disclosing party were not entitled to an injunction
ordering the receiving party to return the documents. Where the documents were
received in this way, the receiving party should be permitted to make proper use of
the documents on the basis that they were no longer the subject to legal professional
privilege or public interest immunity subject to the court’s overriding powers to
ensure that the defendant receives a fair trial.
Walsh Automation (Europe) Ltd v Bridgeman [2002] EWHC 1344
The case confirms the well-established principle that legal professional privilege will
not be upheld where the documents in question had come into being in furtherance of
a criminal or unlawful activity.
Three Rivers Council and Others v Bank of Credit and Commerce International
SA (In Liquidation) v Governor & Company of the Bank of England [2002]
EWHC 2730
The Commercial Court of the Queen’s Bench Division held that an internal
confidential document, not being a communication with a third party, which was
produced or brought into existence with the dominant purpose that it or its contents to
be used to obtain legal advice was privileged from production under legal professional
privilege.
Negotiations and ‘without prejudice’ communications
Prudential Assurance Co Ltd v Prudential Insurance Company of America
[2002] The Times 20 December
The Chancery Division of the High Court was required to consider whether
correspondence relating to the use of a disputed business name in China was covered
by the without prejudice rule.
In reviewing the correspondence and holding that the documents were not covered by
the rule, the following points were noted in the judge’s reasoning. First, none of the
correspondence was marked without prejudice. Second, the tenor of the
correspondence was not to compromise an existing dispute but to prevent any dispute
arising in China or elsewhere. Third, none of the wider policy considerations
identified in Cutts v Head [1984] 2 WLR 349 were present on the facts. Fourth whilst
without prejudice communications might prima facie infringe the right to freedom of
expression under Article 10 European Convention on Human Rights 1950, the rule
was justified by the public interest that underlay it.
The defendant, the Prudential Insurance Company of America, applied for an order
that the claimant withdraw evidence which the defendant contended was privileged
under the ‘without prejudice’ rule.
In rejecting the application, the Chancery Division of the High Court held that in light
of the provisions of the Human Rights Act 1998, the ‘without prejudice’ rule whereby
negotiations, whether written or oral, aimed at settling the proceedings, were excluded
from being given in evidence should be applied with restraint and only in cases to
which the public interests underlying the rule were plainly applicable.
In giving the judgement of the court, Sir Andre Morritt VC stated that Article 10 of
the Convention conferred on everyone the right to freedom of expression, including
the right to receive and impart information and ideas without interference by public
authority and regardless of frontiers. That right however was subject to such
restrictions that were prescribed by law and necessary in a democratic society for the
protection of the rights of others. Prima facie, the right was engaged by the without
prejudice rule but justified by the public interests which underlay it. There was
therefore a need to apply the without prejudice rule with restraint and only in cases to
which the public interests underlying the rule were plainly applicable. The same point
arose in relation to s12 Human Rights Act 1998. By subsection (4) the court was
enjoined to pay particular regard to the importance of the Convention right of freedom
of expression. While that did not require the court to do more than give such right
specific and separate consideration, it too emphasised the importance of confining the
without prejudice rule to its proper scope bounded by public interest considerations.
Finally in giving its judgement, the court cited two authorities. First, in Rush and
Tompkins v GLC [1988] 3 WLR 939, it was recognised that whilst most
communications aimed at securing a settlement of the dispute will be marked ‘without
prejudice’, this is not an absolute pre-requisite for the rule to apply. The
communication containing the offer of settlement will be privileged where it is clearly
the party’s intention to seek a compromise of the action. Therefore the parties’
intention and not the actual words used are key determining factor. In the second case,
Cutts v Head [1984] 2 WLR 349, it was stated that the without prejudice rule
extended not only the communication in which the offer to settle is contained but also
to those documents which are part of the negotiation between the parties.
Chapter 28-The Evidential Issues at a Civil Trial
Jones v University of Warwick [2003] EWCA Civ 151- Improperly obtained
evidence
The issue before the Court of Appeal was whether the defendant in a personal injury
trial could rely on a video film of the claimant recoded without her knowledge. The
claimant was employed by the defendant. She dropped a cash box onto her wrist at
work. The defendant admitted liability but contended that the claimant had virtually
recovered and had no significant ongoing disability. An enquiry agent, acting for the
defendant’s insurers, obtained access to the claimant’s home by posing as a market
researcher and filmed the claimant by using a hidden camera. The film was disclosed
to the claimant. The district judge had ordered the evidence to be excluded on the
basis that the court should not give any approval to the defendant’s agent’s improper
method of gaining entry into the claimant’s home. The judge, on appeal reversed the
decision on the basis that the overriding objective was to deal with a case justly and
that the claimant should be prevented from making an exaggerated or an inflated
claim if there was evidence to controvert it.
The Court of Appeal held that (1) after the coming into force of the Human Rights
Act 1998 that court recognised that there were competing public interests that had to
be reconciled as far as possible. The fact that the defendant’s insurers had been
responsible for the trespass involved in entering the claimant’s house and infringing
her right to privacy under Article 8 of the Convention was a relevant factor for the
court to weigh in the balance when coming to a decision as to how it should properly
exercise its discretion in making orders as the management of the proceedings under
CPR 1.1 and CPR 32(1). (2) The Convention did not decide what was to be the
consequence of evidence being obtained in breach of Article 8. That was a matter for
the national court and if it could be said to have breached Article 8(1) by making the
order that it had decided the law required in accordance with CPR 1.1 and CPR 32(1)
it would be acting within Article 8(2) in doing so. (3) This was not a case where the
conduct of the defendant’s insurer’s was so outrageous that the defence should be
struck out. Therefore the case had to be tried and it would be artificial and undesirable
for the actual evidence that was relevant not to be placed before the judge who was
trying the case. To exclude the evidence would create a wholly undesirable situation.
Therefore it would not be right to interfere with the judge’s decision not to exclude it.
(4) While not excluding the evidence it was appropriate to make clear that the conduct
of the insurers was improper and unjustified. For that reason, subject to further
argument, the defendant should pay the costs of the proceedings to resolve the issue
of admissibility.