#15001 - Experts Warnings And Appeals - Criminal Procedure and Evidence

Supervision 9 – Experts, Warnings and Appeals

The opinion rule and the presentation of expert evidence

• General rule is that opinion evidence excluded.

• Exceptions to the rule out of necessity:

  • Evidence of identity.

  • Evidence of a witness’s own feelings (Hendy).

  • Handwriting proved by non-expert (Tilley).

  • Matters of impression and narrative.

Expert opinion

• Regulated by CPR, Part 19.

• Admissible only in relation to matters of fact (e.g. Cockburn).

• Wide range of expert fields (e.g. Stockwell / Otway / Cooper / Robb).

• New areas of learning too speculative (e.g. Gilfoyle).

  • But experts in earprints accepted in Dallagher.

• Must show relevant professional qualifications.

  • Solicitor who had hobby of handwriting sufficient in Silverlock.

  • Policeman able to give evidence on likelihood of collision having served in traffic division for 15 years (Oakley).

  • Evidence of lip-readers admitted in Luttrell. Test:

    • It must be demonstrated that study or experience will give a witness’s opinion an authority that the opinion of one not so qualified will lack; and

      • Does subject matter of the opinion form part of a body or knowledge that is sufficiently organised to be accepted as a reliable body of knowledge or experience?

    • The witness must be so qualified to express that opinion.

    • Rejected requirement of reliability.

      • Law Commission support statutory reliability test.

  • Edmond and Roberts suggest setting up a panel to advise on reliability at admissibility stage.

    • Reject approaches in Frye and Daubert.

• Court will not refuse expert evidence if approach is contentious (e.g. Robb).

• Law Commission recommended that test of admissibility be put on statutory footing. Rejected on grounds of cost.

• If question falls outside scope of particular witness’s expertise, opinion ought not to be received (Nightingale v Biffen).

• Expert opinion will not be needed where court capable of drawing inferences for itself (e.g. Ugoh).

• Danger of using psychiatrists or psychologists (Turner).

  • But people with IQ of less than 70 will require expert evidence (Henry).

  • Cannot merely be used to verify reliability of a witness (Robinson).

  • Judge must tell jury they are not obliged to accept expert’s view (O’Brien, Hall and Sherwood).

• Cannings suggests that where there is conflicting expert evidence, there must be corroboration by independent evidence.

  • Denounced in Kai-Whitewind. Conflicting evidence fine.

• Courts occasionally admitted testimony of psychologists to explain behaviour of parties who could be described as ‘normal’ (Lowery and King v R).

  • Turner stressed that Lowery is exceptional.

• Experts not being able to deliver opinion on the ‘ultimate issue’ no longer a rule (Stockwell / Fitzpatrick).

• Direction must be given that jury do not have to accept evidence of expert’s own opinion (Hardy).

• Expert must inform court of sources upon which he relies (CJA 2003, s.127 / Abadom).

  • Must make it clear if he is advancing a hypothesis (Re AB).

• General suspicion to the way in which statistical evidence is presented to juries (Clark (Sally)). Obiter would have quashed – once in every 100 years.

  • Talk in terms of likelihood, rather than using figures.

• General test:

  • Necessary (Robinson)?

  • Expert (Silverlock)

  • Reliability of field (Luttrell)

    • Require two or more people in the field (Anderson).

  • Impartial (CPR 19.2)

Corroboration

• English law has no general principle that a defendant cannot be convicted on a single piece of uncorroborated evidence (Criminal Justice and Public Order Act 1994).

  • In Scotland cannot convict on one piece of evidence.

• But held in Makanjuola that direction may still be given in appropriate cases.

  • Witness’s evidence might be tainted by improper motive (Benedetto).

  • Patients detained in a secure hospital complained of ill-treatment (Spencer).

  • Witness retracted accusation then retracted retraction in Walker.

• Prosecution can call a witness when they want to rely on one part of his evidence but not another (Cairns).

• Careful jury direction needed for cell confessions (Pringle / Benedetto / Stone – conviction for murder rested substantially on cell confession).

• Lewis supports evidence-based approach to caution warnings.

• Beck test given when witness tainted with improper motive:

  • (a) General duty to put the defence case fairly to the jury and to draw attention to items of the prosecution case which are actually or potentially unreliable; and

  • (b) In specific cases, to give a warning about certain witnesses who may have an interest of their own to serve in giving evidence

• Birch argues that judges must resist temptation to give full warnings. Supports Beck test.

Inferences drawn from lies told by the defendant – Lucas directions

• CoA in Burge and Pegg suggested where Lucas direction called for:

  • Defence relies upon an alibi that is shown to be false.

  • Where prosecution seeks to show that something D said in relation to a separate issue was a lie, and the prosecution relies on that lie as evidence of guilt (e.g. Blick).

  • Where judge envisages that jury will be tempted to draw an inference that prosecution are relying on D’s having told a lie.

• Not necessary in every contested handling case (Barnett).

• Must be real risk that jury may treat a lie, without more, as evidence of guilt (e.g. Smith). Must relate to a material matter.

• Must be independent evidence of the lie.

• Judge must tell jury:

  • They must decide whether they are sure that D actually told the lie.

  • Must consider why D lied.

    • Adverse inferences drawn only if jury sure that D lied to avoid guilt (Richens / Woodward).

  • Warns the jury not to equate lies with guilt.

Appeals

• Appeals from conviction on indictment are all heard in CoA (Criminal Appeal Act 1968, s.1(1)).

• Trial judge can grant a certificate that case is fit for appeal.

  • Very rare (Parkin).

• Where leave is granted if appellant admitted his guilt in Crown Court:

  • Situations espoused in Forde:

    • Appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it.

    • Upon the admitted facts he could not in law have been convicted of the offences charged.

  • Guilty plea induced by trial judge’s wrong ruling in law (e.g. Clarke).

    • Incorrect ruling of law leaves D with no legal escape of guilt, but not where D is merely influenced (Chalkley).

  • Interest of justice may demand an appeal (e.g. Lee).

• Spencer argues for setting up regional Courts of Appeal to ease workload.

Appeal against sentence

• A person convicted on indictment may appeal against any sentence passed on him by Crown Court (CAA, s.9).

  • ‘Sentence’ interpreted widely (CAA, s.50).

• A person sentenced following summary conviction may appeal (CAA, s.10).

• Unless Crown Court judge certifies that the case is fit for appeal, an appeal against sentence lies only with leave (CAA, s.11).

Determination of appeals against conviction

• CAA, s.2(1): CoA ‘shall allow an appeal against conviction if they think the conviction is unsafe’.

• But old test still applicable (e.g. Mullen).

• Emphasis is on fairness of trial rather than safety of conviction (Condron v United Kingdom / confirmed in Togher).

• CoA allowed to overturn a conviction if there was a ‘lurking doubt’ about jury’s verdict (Cooper).

  • But this is rare.

• But circumstances of ‘unsafe’ must be exceptional (Pope).

• Should factual accuracy always give way to due process (Spencer)?

  • Turnbull direction inherently about factual accuracy.

Errors in trial as grounds of appeal

• Crucial question is whether conviction is safe.

• Appeals based on inadequacy of counsel are based on fairness of trial (Nangle).

  • Test of Wednesbury unreasonableness suggested in Ullah.

  • CoA very critical of this ground of appeal in Smith.

Effect of appeal

• If conviction found to be unsafe, conviction quashed (CAA, s.2(2)).

• Discretion to order retrial in interests of justice (CAA 1968, s.7).

  • Factors to consider in Saunders.

    • Period since original trial / was appellant in custody / strength of case against him

  • Retrial ordered despite adverse publicity in Stone.

  • If jury is hung, test in Bell – third retrial (is it abuse of process):

    • That the alleged offence was one of extreme gravity; and

    • That the evidence against the defendant was very powerful.

• Power to issue writ of venire de novo arises when procedural irregularity of such fundamental mistake that trial is a nullity.

• CAA s.3 – can’t make sentence more severe:

  • If the jury, convicted the appellant as charged, but could have returned a verdict of not guilty as charged but guilty of a lesser offence, CoA can substitute a conviction for the lesser offence.

  • If jury convicted of one of two counts on the indictment in the alternative, and were discharged from giving a verdict on the other count, CoA can reverse the verdict.

• Once appeal dealt with, appellant debarred from bringing a second appeal in the matter (Pinfold).

  • Crown can appeal to Supreme Court against decision to allow appeal on only one ground. SC can decide issue (Mandair).

Appeal process

• Appellant need not be present but he is entitled to attend if he wishes.

• CoA has discretionary power to receive evidence under CAA, s.23.

• Fresh evidence can be admitted if it promotes a line of defence not raised at trial (Ahluwahlia).

• For conviction to be unsafe, need to show that fresh evidence ‘would have made a difference’ (Pendleton).

Appeals from the magistrates’ courts

Appeals to the Crown Court

• A person sentenced by the magistrates following a guilty plea may only appeal against his sentence (Magistrates’ Courts Act 1980, s.108(1)).

• Possible to appeal against plea of guilty...