#16769 - Witnesses, Character Evidence & Relevance - Criminal Procedure and Evidence

competence

To give evidence, must be competent (rules under YJCEA 99)

Act presumes all persons, whatever age competent (s53(1))

D never competent for the prosecution (s53(4-5))

but note this means if 2 Ds tried together neither may testify for prosecution (even if assists P against co-accused) unless plead guilty in advance

Person can be found not competent if can’t

understand questions &

give answers which can be understood (s53(3))

Any party/court itself can raise issue of putative W’s competence (s54(1))

party calling W must prove on b.o.p that competent (s54(2))

court will treat W as having benefit of vulnerable witness directions - can hear expert evidence on it (s54(5))

• Note 2 general themes

• judge asking self whether W can understand/whether answers can be understood - if means have to ask qs slowly using basic language/adapt practices - still means possibility of posing q in such a way W can understand

• also, if test satisfied, is only criteria of competence - wrong for judge add things in to that test (i.e unreliability/contradiction of W)

1. Age?

   Powell 06: said s53 makes clear age not determinant - V 4 at trial - cross-exam didn't go well so CA said should have retrospectively declared child incompetent & tell jury to ignore (though can question if this even fair!)

   Barker 10: child sex - V 4.5 when testified - held properly ruled competent - not able say very much but could nod/shake head at right points - suggestive able understand

   Macpherson 06: again, age not determinant - CA said infant communicating only in baby language with mum not competent whereas child who speaks/understands basic English is competent - thought even 3y.o could be competent in that respect.

   suggests only not competence where no basic grasp of language/communication skills

   with kids always ways of facilitating process e.g tape of kid testimony asap to corroborate.

2. Mental capacity

   Courts have made clear disabled shouldn’t be subject of unfounded stereotyping - key issue is whether can give intelligible testimony

   Sed 04: witness with Alzheimer’s - testimony patchy but judge said competent! Don’t need 100% mutual comprehension - for jury decide reliability - don’t need to be faultless

   note R v F 13 need to make easy for W accc be understood - here clearly would’ve been able understand if diagrams of body were ready

   note (s53(4-5)) means if two Ds tried together, neither may testify for prosecution/ make out case to answer against their co-accused.

   vulnerable witnesses

   Various ways vulnerability can be catered for to allow W be found competent and/or give evidence effectively - ‘special measures’ etc

   Historically, vulnerabilities dealt with v badly e.g corroboration warning (now abolished)

   Ofc need ensure D’s rights protected in vulnerability cases

   Art 6(3)(d) right to examine/have examined witnesses against him

   Big q: does YJCEA 99 strike appropriate balance?

   2 types of vulnerable witness: i) age/incapacity, ii) fear/distress:

1. s.16 YJCEA 99: eligible for assistance if,

(1)(a) under age of 18 at time of hearing, or

2. if quality of evidence likely be diminished by… (completeness/coherence/accuracy)

(2)(a) (i) W’s mental disorder, (ii) otherwise a significant impairment of intelligence/social function

2. physical disability/disorder

2. s.17: eligible for assistance on grounds of fear/distress about testifying if quality of evidence likely be diminished by fear/distress in connection with testifying

• consider nature/circs of offence & age of witness & other matters:

• incl. social/cultural/ethnic origins of W, religious/political opinions, D/D’s family’s behaviour towards W

  special measures

  s19(2): if W qualifies, court must then determine whether any of special measures would be likely to improve quality of evidence given & if so

  determine which of these measures would be likely maximise quality

  give direction providing for measure(s) to apply

1. Screens s23 to prevent W being able see D - quite commonplace

• but W must be able to be seen by judge/jury/legal reps/interpreter etc

• AG for Akratin & Ohekelia v Steinhoff 05: V shielded, only 1 legal rep at time could see - PC said breached 23(2) but held not substantial miscarriage of justice. Face-to-face confrontation not essential

• but Broadhead 08 CA said this wouldn't necessarily be followed in England

2. Evidence via live video link s24 (8) W needs be able be seen by everybody

3. Giving evidence in private s25 - clear courtroom of ppl other than D, D’s legal rep & interpreters

• where proceedings relate to sexual offence or s1/2 MSA 15, or

• reasonable grounds believe any person (other than D) sought/will seek intimidate W

4. Removal of wigs & gowns s26

5. Video-recorded evidence in chief s27

• interview with W to be admitted as W’s evidence-in-chief

• not shown if court says shouldn't be in interests of justice (or part of it) - s27(2)

• consider desirability of showing video vs prejudice to D

• but may still be inadmissible if W unavailable for cross-exam & parties haven't agreed no need for witness be available - s27(4)

• W must be called to be cross-examined unless that is provided for under special measures in the video (s28) or if agree - s27(5)

• s27(7) can’t give other evidence without permission court - will grant permission if in interest of justice

• Davies 11 pre-recorded evidence can be admitted in spite of possibility witness might say something inconsistent in court - just needs be reflected in summing up

• Popescu 10: jury can only retire with transcript in exceptional circs e.g if D want them to - must be specifically directed to judge

• R v R 17: some members of jury had transcripts. Held judges ought to have discharged jury because had been reading transcripts & no other way to cure them

6. Video-recorded cross-examination/re-examination s28

• where have used s27 measures

• judge & legal reps must be able see/hear examination & communicate with person

• D must be able see & hear any examination & communicate with legal rep

• Can’t be further cross-examined unless further directions

• only if they may be aware of something new or if in interests of justice

• note for this must have a ‘ground rules’ hearing first

• only available in certain pilot areas (Liverpool, Leeds & Kingston)

• note CA has upheld conviction on first challenge to use of s.28….

• R v PMH 18: complaint about child evidence in cross-exam played at trial- video not working well & child’s face couldn’t always be seen. Also had changed counsel & new counsel hadn’t had chance do own cross-exam. Rejected - passages where child could be seen & never changed testimony. No new dramatic questions counsel would’ve wanted ask

• Plotnikoff & Woolfson benefits of s.28 worth waiting for

7. Examination through intermediaries s29

• essentially examination through interpreters etc

• function (s29(2)) = communicating with W - putting qs & relating answers - explain etc

8. Aids to communication s30(2)

• devices to help answer qs/communicate e.g sign boards

  note all measures available if vulnerable because age/capacity - s18(1)(a)

  but if because fear/distress, just s23-28 - s18(1)(b)

  s21 says for kids, special measures in s27/24 must be available - s21(3)

  but not apply if court satisfied wouldn't diminish quality of evidence - s21(4)(b)

  In these cases s23 (screen) must be used - s21(4A)

  but this can be disabled for same reasons

  consider characteristics of W etc, nature of proceedings etc - s21(4C)

  s22A default position regarding Vs of sexual offences (over 18) = s27/24

  s32 where evidence been given in accordance with special measures direction, judge must warn jury as necessary to ensure doesn't prejudice D

  note D cannot question W personally where W C in sexual offence - s34

  or ‘protected’ W - s35 - a child or cross-examined on evidence given by video recording when W was a child

  s36 gives trial judge discretion prevent personal cross-examination

• Where, on application by parties or of its own motion appears

1. quality of evidence given i) likely diminish if exam by D personally

ii) would improve if use this discretion

2. wouldn't be contrary to interests of justice

• consider views expressed by W, nature of qs likely be asked, behaviour of D, relationship between W & D

  anonymous witnesses (especially vulnerable)

  Doorson - ECtHR whenever W anonymity granted, a conviction must not be based solely or to a decisive extent on the evidence of such persons, even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours

  Davis followed ECtHr jurisprudence!

  Decision sparked controversy - thought up to 40 prisoners could appeal

  but Lord Mance said although this was common law position, scope for stat modification

  Gov almost immediately introduced legislation - now in s86 CJA 09

  P or D can apply for ‘witness anonymity order’ s87(1)

  s86(2) lists things that can be done - largely what was done in Davis

  name/ID may be withheld, pseudonym, screens, voice modulation etc

  must remain visible to judge & jury (& normal voice audible)

  s87 P must tell court identity of W (but not D), D must tell court & P

  s88 3 conditions need be met for order:

1. order necessary: protect safety/property/prevent harm to pub interest

2. consistent with D receiving fair trial

3. W ought testify in interest of justice (given importance) & wouldn't without anonymity or pub interest harmed if no anonymity

   Also consider fear of W!

   s89 gives other relevant considerations:

   If material change of circumstance parties may apply have anonymity order...