#14999 - Basic Evidential Principles - Criminal Procedure and Evidence

Supervision 5 – Basic Evidential Principles

Relevance and admissibility

• Relevance refers to any item of proof that renders more or less probable the existence of a fact in issue in the case (Wilson).

  • Logical relevance – if it increases or decreased probability of ‘x’.

  • Legal relevance – logical relevance and a ‘plus value’ that makes the evidence worth considering (Blastland).

    • More probative than prejudicial.

• Lord Steyn in Randall: “The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience.”

• ‘Circumstantial’ evidence describes evidence of facts relevant to the issue.

  • Circumstantial evidence can suffice for conviction (McGreevy).

• Evidence of cash or lifestyle admissible in cases of drug trafficking to prove an issue in the case – possession or intent (Gordon).

  • Such evidence will usually lack probative value in proving possession (Guney – special circumstances here – proximity).

  • To be admissible to prove intention to supply, evidence has to be logically probative of that intention (Gordon).

• If there are fewer than 8 similar ridge characteristics, it would be exceptional for a judge to admit fingerprint evidence (Buckley).

  • If there are 8 or more, exercise of judge’s discretion to admit such evidence will depend on circumstances of the case.

  • Stressed that fingerprint evidence is of opinion only.

• Circumstantial evidence describes evidence of fact relevant to the issue.

• Finding items similar to those used in the crime relevant (Reading / Mustapha).

Competence

• In civil cases, the judge has to be satisfied that a witness both: is capable of speaking coherently, and understands not only what it means to speak the truth, but also the solemnity of the occasion and the added obligation to speak the truth in a court of law (Hayes).

• Youth Justice and Criminal Evidence Act 1999, governing criminal cases, presumes that everyone is competent to give evidence (s.53(1)).

  • It is for the party calling the witness to satisfy court that, on balance of probabilities, witness is competent to give evidence (s.54(2)).

• General test in s.53(3):

  • A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to:

    • Understand questions put to him as a witness, and

    • Give answers to them that can be understood.

• Age of the witness not determinative (Powell).

• Children should not be deemed less reliable than adults (B).

• Child’s competence may be reviewed after they have given evidence (B).

  • Henderson argues that this is regrettable.

• Spencer argues that liberal view to child competence is good, worries about cross-examination of children.

  • Argues for defence using video interviews (Pigot procedure).

• In F, witness had severe learning disabilities but still competent. Liberal.

• Judge will consider ABE interview and consider whether use of intermediaries would assist them in giving best evidence.

Compellability

• As a general rule, competent witnesses are treated as compellable.

  • If they refuse to give evidence, could be liable for contempt of court.

  • Certain parties, such as diplomatic agents, not compellable in any circumstances.

• Unlike other witnesses, the accused does not enjoy a privilege against self-incrimination (Criminal Evidence Act 1898, s.1(2)).

• There are restrictions on the compellability of an accused’s spouse.

  • Non-compellability rule applies to ‘lawfully wedded spouses’ but not to those who are merely cohabiting (Hoskyn v MPC).

    • Pearce argued for expansion, but this was rejected.

  • Capable of being abused, but in R (CPS), prisoner who was awaiting trial allowed to marry principal prosecution witness.

  • PACE, s.80 provides that a wife is compellable in the case of ‘specified offences’.

    • Specified offences defined in s.80(3).

    • Focus is on the nature of the offence, rather than factual circumstances (BA).

  • S.80 makes clear that, unless husband and wife are jointly charged, wife is both competent and compellable on behalf of the husband (s.80(2)).

  • Failure of spouse to give evidence should not be commented on by the prosecution (s.80A).

    • Judge will direct jury to ignore these comments (Davey).

  • If in the interests of justice (CJA 2003, s.114(1)(d)), spousal statements made to the police will be admissible (RL).

  • Desirable to check that wife knows rights of immunity but not mandatory (Nelson).

  • Brabyn argues for stricter rules of non-compellability.

Sworn and unsworn evidence

• A witness may now be sworn unless he is at least 14 years old and has sufficient appreciation of the particular responsibility to tell the truth which is involved in taking an oath (YJCE, s.55(2)).

• Witnesses usually take an oath in the form laid down in Oaths Act 1978, s.1.

• The form of oath or affirmation does not matter.

The course of the trial

• In criminal cases, prosecution will usually open the case.

• In all cases, the defence has the final word (Criminal Procedure (Right of Reply) Act 1964).

• Emphasised in by Cumming-Bruce LJ in Gunnning that judge is not an advocate.

• In determining if judge has intervened too much, key question will simply be whether the trial was fair (Hadi Jemaldeen).

  • In Webb and Simpson – judge asked 175 questions.

  • Stressed by Henry LJ in Frixou that it is the quality of interferences that is important, not the quantity.

• If defendant testifies, he must give his evidence before other witnesses for the defence are called (PACE, s.79).

• Jury ought not to speculate on why a particular witness has not been called (C(T)).

• When a witness enters the witness box, he is first questioned by his own side, then may be questioned by the opposing side, and finally, may be questioned again by the side that called him.

  • Known as ‘examination-in-chief’, ‘cross-examination’ and ‘re-examination’.

• Cannot ask witnesses leading questions:

  • Suggesting to the witness the desired answer.

  • One that assumes disputed facts.

• But there are exceptions to when leading questions can be asked if:

  • Relate to witness’s name and occupation.

  • Concern matters that are not contested.

  • Witness is declared hostile.

Hostile witnesses

• Criminal Justice and Police Act 2001 creates offences for intimidating witnesses and harming persons who have appeared as witnesses.

• Hostile witnesses are either obstructive, stand mute or are obviously not telling the truth. Need to be given an opportunity to refresh their memory.

  • Test – witness is not desirous of telling the truth (Thompson).

  • Witness who is ‘mute of malice’ declared hostile (Thompson).

  • Counsel will normally apply to the judge to have a particular witness declared hostile.

  • Two consequences:

    • Witness may be asked leading questions.

    • Witness may be questioned about any previous inconsistent statements that he or she may have made.

• Criminal Procedure Act 1865, s.3 lays down the procedure for questioning hostile witnesses about previous inconsistent statements.

  • If witness reverts to old story, jury direction needed (Ugorji).

  • Prove the statement under s.3, then admit under s.119?

• Criminal Justice Act 2003, s.119, provides that where a previous inconsistent statement has been proved, the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible.

  • Jury will then choose which version of events it believes.

  • Comes into play if witness maintains testimony (Gibbons).

• Witnesses can be called even if their testimony is likely to prove hostile (Honeyghon and Sayles).

• Prosecution may call a witness to give evidence even if it appears to be incorrect (Clarke (Josh)).

Cross-examination

• Criminal Justice Act 2003, s.100 regulates the cross-examination in criminal cases of witnesses on their bad character.

• If a previous inconsistent statement is proved, it will be open to the jury to determine which, if any, of the alternative versions presented they believe.

• If documents adduced to prove inconsistency, CJA 2003, s.122 states that they should not accompany jury when they retire, unless court considers it appropriate or if all parties to the proceedings agree it should.

• In criminal cases the judge has discretion to curtail prolonged or vexatious cross-examination.

  • But 40 hours of cross-examination was fair in Jisl, Tekin and Konakli.

Re-examination

• A witness who has been cross-examined by the opposing party may be re-examined by the party who called him.

• Confined to matters that have been subject of cross-examination.

• Generally, witnesses may not be called simply to endorse the credibility of another witness (Robinson).

• Witness support services are made available in courts.

  • But sometimes they may be too interventionist (Catherall).

  • Witnesses are encouraged to familiarise themselves with court procedure, but crucial question is whether their testimony is contaminated (Momodou and Limani).

  • Exclusion under s.78. What about defence witnesses?

  • Ask whether person providing advice had any particular knowledge of case.

• Witnesses may be called to impeach credibility of another witness (Richardson).

  • Rarely used (Colwill).

The Crown’s right to reopen its case

• Court may allow Crown to reopen its case and present additional evidence.

• Discretion governed by interests of justice (Munnery).

• Three kinds of cases:

  • If prosecution has inadvertently omitted to prove some technical matter, court will commonly allow the Crown to prove such a thing after the close of the prosecution case.

  • If evidence was not called during the Crown’s case simply because it was unavailable at that time, court may allow...