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Evidence
Fourth edition

ANDREW L-T CHOO
Professor of Law, City University London
Barrister, Matrix Chambers, London

3
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Andrew L-T Choo 2015
The moral rights of the author have been asserted
First Edition 2006
Second Edition 2009
Third Edition 2012
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v2.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2014956594
ISBN 978–0–19–870527–7
Printed in Great Britain by
Ashford Colour Press Ltd, Gosport, Hampshire
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
For my parents
New to this Edition

The 4th edition:

• Takes account of revisions to the:
– Civil Procedure Rules
– Criminal Practice Directions
– Criminal Procedure Rules
– Police and Criminal Evidence Act Codes of Practice
• Takes account of cases on various topics decided since the last edition was
completed, or the significance of which has become clear since then, including:
– R v Ben-Rejab (CA, 2011) (sexual behaviour evidence)
– R v Chinn (CA, 2012) (previous consistent statements)
– R v D (N) (CA, 2011) (bad character evidence)
– R v M (E) (CA, 2014) (bad character evidence)
– R v Riat (CA, 2012) (hearsay evidence)
– R v Williams (Orette) (CA, 2012) (burden of proof)
– R (Prudential plc) v Special Comr of Income Tax (SC, 2013) (legal professional
privilege)
• Makes reference to new secondary material, including journal articles and
monographs, from a variety of jurisdictions
Outline Contents

Preface  xiii
Acknowledgements  xiv
Table of Cases  xv
Table of Statutes  xxxiii
Table of Statutory Instruments  xl
Table of European Materials  xli

1 Introduction  1

2 Burden and Standard of Proof  29

3 The Course of Evidence  57

4 Confessions  92

5 The Right to Silence and the Privilege against Self-Incrimination  125

6 Identification Evidence  153

7 Investigatory Impropriety: Violations of the European Convention on

Human Rights and Undercover Police Operations  171

8 Public Interest Immunity and Related Matters  204

9 Legal Professional Privilege  221

10 Character Evidence  246

11 Hearsay Evidence  280

12 Expert Evidence  313

13 Witnesses  355

14 Proof without Evidence  409

Index 429
Contents

Preface  xiii
Acknowledgements  xiv
Table of Cases  xv
Table of Statutes  xxxiii
Table of Statutory Instruments  xl
Table of European Materials  xli

1 Introduction  1
1 Facts in Issue and Collateral Facts  2
2 Relevance, Admissibility, and Weight  2
3 Direct Evidence and Circumstantial Evidence  5
4 Testimonial Evidence and Real Evidence  8
5 The Allocation of Responsibility  10
6 Exclusionary Rules and Exclusionary Discretions  13
7 Free(r) Proof  16
8 Issues in Criminal Evidence  17
9 Civil Evidence and Criminal Evidence  19
10 The Implications of Trial by Jury  20
11 Summary Trials  23
12 Law Reform  23
13 The Implications of the Human Rights Act 1998  26
14 Organization of the Book  27

2 Burden and Standard of Proof  29

1 Burden of Proof  29
2 Standard of Proof  47
3 Summary and Conclusion  56
Further Reading  56

3 The Course of Evidence  57

1 The Adversarial Tradition  57
2 The Course of the Trial  68
3 Questioning one’s own Witnesses: Examination-in-Chief and
Re-Examination  71
4 Cross-Examination  80
5 Summary and Conclusion  90
Further Reading  91
x
Contents

4 Confessions  92
1 Confessions and Miscarriages of Justice  92
2 ‘Confession’  95
3 Mandatory Exclusion  96
4 Discretionary Exclusion  100
5 ‘Tainting’ of Subsequent Confessions  110
6 Mentally Handicapped Defendants and Warnings  111
7 Withdrawal of the Case from the Jury  112
8 Partly Adverse Statements  113
9 Use of Confession Contravening Section 76(2)  114
10 Confession Admissible in Evidence only against Maker  117
11 Use of a Co-Defendant’s Confession by a Defendant  119
12 The Voir Dire Hearing  120
13 Reform  121
14 Summary and Conclusion  124
Further Reading  124

5 The Right to Silence and the Privilege against Self-Incrimination  125

1 The Right to Silence  125
2 The Privilege against Self-Incrimination  145
3 Summary and Conclusion  152
Further Reading  152

6 Identification Evidence  153

1 Mistaken Identifications  153
2 Turnbull Warnings  155
3 Discretionary Exclusion of Identification Evidence  161
4 Photographs and Video Recordings  166
5 Summary and Conclusion  169
Further Reading  170

7 Investigatory Impropriety: Violations of the European Convention on

Human Rights and Undercover Police Operations  171
1 The Exclusion of Improperly Obtained Evidence  171
2 Evidence Obtained in Undercover Police Operations  192
3 Summary and Conclusion  203
Further Reading  203

8 Public Interest Immunity and Related Matters  204

1 The Development of the Law  205
2 ‘Class’ Claims and ‘Contents’ Claims  206
3 National Security and Analogous Concerns  206
Contents xi

4 Proper Functioning of the Public Service  207

5 Criminal Cases  208
6 Procedure  212
7 The Freedom of Information Act 2000  215
8 Confidentiality  216
9 The Contempt of Court Act 1981, Section 10  216
10 Summary and Conclusion  219
Further Reading  220

9 Legal Professional Privilege  221

1 The Concept of Privilege  221
2 The Privilege against Self-Incrimination  221
3 ‘Without Prejudice’ Negotiations  223
4 Legal Professional Privilege  226
5 Other Professional Privileges?  245
6 Summary and Conclusion  245
Further Reading  245

10 Character Evidence  246

1 The Relevance of Evidence of Character  246
2 Civil Proceedings  248
3 Criminal Proceedings  249
4 Summary and Conclusion  279
Further Reading  279

11 Hearsay Evidence  280

1 The Hearsay Debate  280
2 Hearsay Evidence in Civil Proceedings  282
3 Other Proceedings in which the Hearsay Rule Is Inapplicable  285
4 Criminal Proceedings  286
5 Summary and Conclusion  311
Further Reading  312

12 Expert Evidence  313

1 The Fact and Opinion Distinction  315
2 Admissibility  315
3 Use of the Work of Others and the Rule against Hearsay  340
4 ‘Ultimate Issues’  341
5 Expert Witnesses  342
6 ‘Battles of Experts’ and the Presentation of Expert Evidence  346
7 Disclosure of Expert Evidence  352
8 Evaluation of Expert Evidence  352
xii
Contents

9 Summary and Conclusion  353

Further Reading  354

13 Witnesses  355
1 Competence  355
2 Compellability  358
3 Corroboration, Witness Unreliability, and Judicial Warnings  368
4 Measures Designed to Ease the Burden on Witnesses  376
5 Summary and Conclusion  407
Further Reading  408

14 Proof without Evidence  409

1 Formal Admissions  409
2 Judicial Notice  410
3 Presumptions  414
4 Summary and Conclusion  427
Further Reading  428

Index 429
Preface

Like the first three editions, this edition of Evidence seeks to provide an appropriately
contemporary perspective on the law of evidence in England and Wales. The book
attempts to cover the main topics in evidence law, but in doing so to focus on issues of
contemporary concern rather than to achieve a comprehensive treatment of all relevant
doctrinal principles. When discussing case law, I frequently allow quotations of clear
and pithy judicial statements to ‘speak for themselves’. Throughout the book I attempt
where appropriate to draw on comparative material and a variety of socio-legal, empiri-
cal, and non-legal, such as psychological, material. I  provide in the footnotes a large
number of references which may be used as a guide to further reading and research.
A selective list of further reading may also be found at the end of each chapter except
the first one.
I generally stopped collecting new material after late November 2014, and shall check
website references immediately before returning the corrected first proofs in January 2015.
In relation to two matters of case citation on which, frustratingly, practice is still
not uniform, I have followed the recommendations made in the 4th edition (2012) of
the Oxford Standard for the Citation of Legal Authorities (‘OSCOLA’). The first recom-
mendation is this: ‘Give the year of judgment (not publication) in round brackets when
the volumes of the law report series are independently numbered, so that the year of
publication is not needed to find the volume’ (page 14). The second is this: ‘In some
specialist law reports, cases are given case numbers which run consecutively through
the volumes, rather than page numbers. . . . In such cases, follow the citation method
used by the series in question’ (page 18). Thus, for example, O’Halloran and Francis v
UK, decided in 2007 and reported in 2008 in volume 46 of the European Human Rights
Reports as case number 21, commencing at page 397, is cited as ‘(2007) 46 EHRR 21’
rather than as ‘(2007) 46 EHRR 397’ (as on Lexis), ‘(2008) 46 EHRR 21’ (as on Westlaw),
or ‘(2008) 46 EHRR 397’.
I would like to express my grateful thanks to John Etentuk for his research assistance,
and to John Carroll, Elisa Cozzi, Tom Randall, and Tom Young at Oxford University
Press. It is a particular pleasure to be working—for the fifth time in my career—with
Susan Faircloth as copyeditor. My family and friends, as ever, have provided much sup-
port and encouragement.
ALTC
London
24 November 2014
Acknowledgements

Grateful acknowledgement is made to all the authors and publishers of copyright material
which appears in this book, and in particular to the following for permission to reprint
material from the sources indicated:
Andrew L-T Choo and Susan Nash, ‘Evidence Law in England and Wales: The Impact
of the Human Rights Act 1998’ (2003) 7 International Journal of Evidence and Proof 31–61
Andrew L-T Choo and Susan Nash, ‘What’s the Matter with Section 78?’ [1999]
Criminal Law Review 929–40
Andrew L-T Choo, ‘Case Note: Prepared Statements, Legal Advice and the Right to
Silence: R v Knight’ (2004) 8 International Journal of Evidence and Proof 62–7
Every effort has been made to clear the necessary permissions. If notified, the publisher
will undertake to rectify any errors or omissions at the earliest opportunity.
Table of Cases
A (A Child), Re [2008] EWCA Civ 1138, [2009] 1 A-G for the Sovereign Base Areas of
WLR 1482 . . .  53 Akrotiri and Dhekelia v Steinhoff [2005]
A v Secretary of State for the Home Department UKPC 31 . . .  381
[2005] UKHL 71, [2006] 2 AC 221 . . .  183, 188 A-G’s Reference (No 3 of 1999) [2001] 2
Abrath v North Eastern Rly Co (1883) 11 WLR 56 . . .  180
QBD 440 . . .  45 A-G’s Reference (No 3 of 2000) [2001] UKHL 53,
Addington v Texas 441 US 418 [2001] 1 WLR 2060 . . .  198–203
(1979) . . .  47, 48, 55 A-G’s Reference (No 7 of 2000) [2001] EWCA
Aegis Blaze, The [1986] 1 Lloyd’s Rep 203 . . .  228 Crim 888, [2001] 2 Cr App R 19 . . .  151, 222
Air Canada v Secretary of State for Trade [1983] A-G’s Reference (No 2 of 2002) [2002] EWCA
2 AC 394 . . .  205, 207 Crim 2373, [2003] 1 Cr App R 21 . . .  9, 168
Aird v Prime Meridian Ltd [2006] EWCA Civ A-G’s Reference (No 1 of 2003) [2003] EWCA
1866, [2007] CP Rep 18 . . .  345 Crim 1286, [2003] 2 Cr App R 29 . . .  298
Ajodha v The State [1982] AC 204 . . .  94, 120 A-G’s Reference (No 4 of 2002) [2004] UKHL 43,
Alderman v US 394 US 165 (1969) . . .  186 [2004] 3 WLR 976 . . .  35–37
Alexander v Rayson [1936] 1 KB 169 . . .  70 AT & T Istel Ltd v Tully [1993] AC
45 . . .  151, 222
Al Fayed v Metropolitan Police Commissioner
[2002] EWCA Civ 780 . . .  243, 244 Azzopardi v R [2001] HCA 25 . . .  359
Alfred Crompton Amusement Machines Ltd v
Customs and Excise Commissioners [1974] B (Children), Re [2008] UKHL 35, [2009] 1 AC
AC 405 . . .  208 11 . . .  51, 52
Al-Khawaja and Tahery v UK (2009) 49 EHRR B v Auckland District Law Society [2003] UKPC
1 . . .  307–9 38, [2003] 3 WLR 859 . . .  226, 227, 233, 237,
Al-Khawaja and Tahery v UK (2011) 54 240, 241
EHRR 23 . . .  309 B v Chief Constable of Avon and Somerset
Allan v UK (2002) 36 EHRR 12 . . .  179 Constabulary [2001] 1 All ER 562, [2001] 1
Allen v UK (Admissibility) (Application No WLR 340 . . .  55
76574/01) 10 September 2002 . . .  152 Balabel v Air India [1988] Ch 317 . . .  230, 232
Armchair Passenger Transport Ltd v Helical Bar Balfour v Foreign and Commonwealth Office
plc [2003] EWHC 367 (QB) . . .  344 [1994] 1 WLR 681 . . .  205, 207
Armstrong v First York Ltd [2005] EWCA Civ Balkanbank v Taher (1994) The Times, 19
277 . . .  353 February . . .  235
Asch v Austria (1991) 15 EHRR 597 . . .  304 Barkway v South Wales Transport Co Ltd [1948]
Ashburton (Lord) v Pape [1913] 2 Ch 469 . . .  243 2 All ER 460 . . .  419
Ashworth Hospital Authority v MGN Ltd [2002] Barnes v Chief Constable of Durham [1997] 2 Cr
UKHL 29, [2002] 1 WLR 2033 . . .  219 App R 505 . . .  162
Asiatic Petroleum Co Ltd v Anglo Persian Oil Barnetson v Framlington Group Ltd
Co Ltd [1916] 1 KB 822 . . .  207 [2007] EWCA Civ 502, [2007] 1 WLR
2443 . . .  223, 224
Associated Provincial Picture Houses Ltd v
Wednesbury Corpn [1948] 1 KB 223, [1947] Bater v Bater [1951] P 35 . . .  51
2 All ER 680 . . .  14, 101, 272, 360, 371 Beckford v R (1993) 97 Cr App R 409 . . .  156
A-G v Briant (1846) 15 M & W 169, 153 ER Beckles v UK (2002) 36 EHRR 13 . . .  133,
808 . . .  208 134, 141
A-G v Hitchcock (1847) 1 Ex 91, 154 ER Benedetto v R [2003] UKPC 27, [2003] 1 WLR
38 . . .  83, 86 1545 . . .  124, 372
A-G for Gibraltar v May [1999] 1 WLR Benham Ltd v Kythira Investments Ltd [2003]
998 . . .  222 EWCA Civ 1794 . . .  70
xvi
Table of C ases

Beresford v St Albans Justices (1905) 22 Calderbank v Calderbank [1976] Fam 93 . . .  224

TLR 1 . . .  6 Camelot Group plc v Centaur Communications
Berry Trade Ltd v Moussavi [2003] EWCA Civ Ltd [1998] 1 All ER 251 . . .  218
715 . . .  225 Campbell v Hamlet [2005] UKPC 19, [2005] 3
Blake v DPP (1992) 97 Cr App R 169 . . .  211 All ER 1116 . . .  54
Blank v Canada (Minister of Justice) [2006] 2 Canada (Citizenship and Immigration) v Harkat
SCR 319 . . .  227, 228, 232 2014 SCC 37 . . .  209
Blunt v Park Lane Hotel Ltd [1942] 2 KB Capron v The Queen [2006] UKPC 34 . . .  157
253 . . .  221 Carib Steel v Price Waterhouse [2013] UKPC 18,
Bolitho v City and Hackney Health Authority [2013] 4 All ER 338 . . .  353
[1997] 4 All ER 771 . . .  353 Carter v Eastbourne Borough Council (2000)
Bourns Inc v Raychem Corp [1993] 3 All ER 164 JP 273 . . .  413
154 . . .  242 Chalkley v United Kingdom (Admissibility)
Bowman v DPP [1991] RTR 263 . . .  411, 412 (Application No 63831/00) 26 September
Bradford & Bingley plc v Rashid [2006] UKHL 2002 . . .  180
37, [2006] 1 WLR 2066 . . .  224 Chalmers v HM Advocate 1954 SLT
Bramblevale Ltd, Re [1970] Ch 128 . . .  53 177 . . .  114, 115
Bratty v A-G for Northern Ireland [1963] Chard v Chard [1956] P 259 . . .  417
AC 386 . . .  46 Charlebois v DPP [2003] EWHC 54
Briscoe v Briscoe [1968] P 501 . . .  65 (Admin) . . .  150
British American Tobacco (Investments) Ltd v Charles v The Queen [2007] UKPC 47 . . .  100
USA [2004] EWCA Civ 1064 . . .  234, 242 Chaunt v US 364 US 350 (1960) . . .  55
British Coal Corpn v Dennis Rye Ltd (No Chief Adjudication Officer v Bath [2000] 1
2) [1988] 1 WLR 1113 . . .  236 FLR 8 . . .  416
British Railways Board v Herrington [1972] Chief Constable of Lancashire v Potter [2003]
AC 877 . . .  7 EWHC 2272 (Admin) . . .  55
Brown v Foster (1857) 1 H & N 736, 156 ER Cinar Corporation v Robinson 2013 SCC 73,
1397 . . .  228 [2013] 3 SCR 1168 . . .  337
Brown v Rice [2007] EWHC 625 (Ch), [2008] Clark v Arizona 548 US 735 (2006) . . .  31
FSR 3 . . .  225 Clifford v Clifford [1961] 1 WLR 1274 . . .  85
Brown v Stott [2001] 2 WLR 817 . . .  148 Commonwealth Shipping Representative v P &
Browne v Dunn (1893) 6 R 67 . . .  82, 91 O Branch Service [1923] AC 191 . . .  410
Brunel University v Vaseghi [2007] EWCA Civ Condron v United Kingdom (2000) 31 EHRR
482, [2007] IRLR 592 . . .  225 1 . . .  133, 134, 136, 139, 140
Bruton v US 391 US 123 (1968) . . .  118 Conlon v Simms [2006] EWCA Civ 1749, [2008]
Buckley v Law Society (No 2) [1984] 3 All ER 1 WLR 484 . . .  421
313 . . .  208 Constance v The State (1999) unreported, 16
Bullcoming v New Mexico 131 S Ct 2705 December, PC . . .  120
(2011) . . .  311 Constantine (Joseph) Steamship Line Ltd
Bunning v Cross (1978) 141 CLR 54 . . .  188 v Imperial Smelting Corpn Ltd [1942]
Burmah Oil Co Ltd v Bank of England [1980] AC 154 . . .  45
AC 1090 . . .  207 Conway v Rimmer [1968] AC 910 . . .  205, 207
Butler v Board of Trade [1971] Ch Cottrell v General Cologne Re UK Ltd [2004]
680 . . .  237, 244 EWHC 2402 (Comm) . . .  283
Buttes Gas and Oil Co v Hammer (No 3) [1981] Crawford v Washington 124 S Ct 1354
QB 223, revsd [1982] AC 888 . . .  207, 234 (2004) . . .  300, 310
Crosdale v R [1995] 1 WLR 864 . . .  69
C plc v P [2007] EWCA Civ 493, [2008] Crossland v DPP [1988] 3 All ER 712 . . .  369
Ch 1 . . .  222 Cutts v Head [1984] Ch 290 . . .  224
CG v UK (2001) 34 EHRR 31 . . .  67
Cala Homes (South) Ltd v Alfred McAlpine D, Re [2008] UKHL 33, [2008] 1 WLR
Homes East Ltd [1995] FSR 818 . . .  316 1499 . . .  51, 54, 55
Calcraft v Guest [1898] 1 QB 759 . . .  242, 243 D (Infants), Re [1970] 1 WLR 599 . . .  208
Table of C ases xvii

D v DPP (1998) The Times, 7 August . . .  164 Duncan v Cammell, Laird & Co Ltd [1942] AC
D v National Society for the Prevention 624 . . .  205–7
of Cruelty to Children [1978] AC Dunlop Slazenger International Ltd v Joe Bloggs
171 . . .  207, 209 Sports Ltd [2003] EWCA Civ 901 . . .  234
Daley v R [1994] 1 AC 117 . . .  156 Dwyer v Collins (1852) 21 LJ Ex 225 . . .  228
Dasreef Pty Ltd v Hawchar [2011] Dyers v R [2002] HCA 45 . . .  7
HCA 21 . . .  337
Daubert v Merrell Dow Pharmaceuticals 509 US Edwards and Lewis v UK (2004) 40
579 (1993) . . .  335–38 EHRR 24 . . .  213
Davey v Harrow Corpn [1958] 1 QB 60 . . .  413 Elahi v UK (2006) 44 EHRR 30 . . .  178
Davie v Edinburgh Magistrates 1953 El-Masri v Former Yugoslav Republic of
SC 34 . . .  316 Macedonia (2012) 57 EHRR 25 . . .  97, 98
Davis v US 131 S Ct 2419 (2011) . . .  187 Engelke v Musmann [1928] AC 433 . . .  413
Davis v Washington 547 US 813 (2006) . . .  310 English and American Insurance Co Ltd v
Dellow’s Will Trusts, Re, Lloyds Bank Ltd Herbert Smith & Co [1988] FSR 232 . . .  243
v Institute of Cancer Research [1964] 1 English Exporters (London) Ltd v Eldonwall Ltd
WLR 451 . . .  53 [1973] Ch 415 . . .  340
Dennis v A J White & Co [1917] AC 479 . . .  411 Enoch and Zaretzky, Bock & Co’s Arbitration,
Derby & Co Ltd v Weldon (No 8) [1990] 3 All ER Re [1910] 1 KB 327 . . .  65
762 . . .  243 Environment Agency v ME Foley Contractors
Deripaska v Cherney [2012] EWCA Civ 1235, Ltd [2002] EWHC 258 (Admin), [2002] 1
[2013] CP Rep 1 . . .  382 WLR 1754 . . .  42
Desmond v Bower [2009] EWCA Civ 667, [2010] Esso Australia Resources Ltd v Commissioner of
EMLR 5 . . .  248 Taxation [1999] HCA 67 . . .  233
Dillon v R [1982] AC 484 . . .  418 Evans v The Queen [2007] HCA 59 . . .  8
Dixon v US 548 US 1 (2006) . . .  46 Ewer v Ambrose (1825) 3 B & C 746, 107
DPP v A & BC Chewing Gum Ltd [1968] 1 QB ER 910 . . .  72
159 . . .  324, 342 Expense Reduction Analysts Group Pty Ltd
DPP v Barker [2004] EWHC 2502 (Admin), v Armstrong Strategic Management and
(2004) 168 JP 617 . . .  43 Marketing Pty Ltd [2013] HCA 46 . . .  234
DPP v Godwin [1991] RTR 303 . . .  173, 174
DPP v Hynde (1997) 161 JP 671 . . .  410 FH v McDougall 2008 SCC 53, [2008]
DPP v Jordan [1977] AC 699 . . .  324 3 SCR 41 . . .  51
DPP v Kavaz [1999] RTR 40 . . .  41 Farrell v R [1998] HCA 50 . . .  322
DPP v Kay [1999] RTR 109 . . .  173 Fayed v Al-Tajir [1987] 2 All ER 396 . . .  207
DPP v Kilbourne [1973] AC 729 . . .  2–4 Ferguson v R [1979] 1 WLR 94 . . .  48
DPP v McGladrigan [1991] RTR 297 . . .  173 Financial Times Ltd v UK (2009) 50
DPP v Mooney [1997] RTR 434 . . .  409 EHRR 46 . . .  219
DPP v P [1991] 2 AC 447 . . .  263 Fontaine v British Columbia (Official
DPP v Wilson [2001] EWHC Admin 198, (2001) Administrator) [1998] 1 SCR 424 . . .  420
165 JP 715 . . .  148 Fox v General Medical Council [1960] 1 WLR
DPP Transvaal v Minister for Justice and 1017 . . .  77
Constitutional Development [2009] Fox v HM Advocate 1998 SLT 335 . . .  368
ZACC 8 . . .  377 Francisco v Diedrick (1998) The Times, 3
Domican v R (1992) 173 CLR 555 . . .  159 April . . .  53
Dover District Council v Sherred (1997) 29 HLR Freemantle v R [1996] 1 WLR 67 . . .  159
864 . . .  352 Fryer v Pearson and Another (2000) The Times,
Dubai Aluminium Co Ltd v Al Alawi [1999] 1 4 April . . .  420
WLR 1964 . . .  237, 238 Funke v France (1993) 16 EHRR 297 . . .  145,
Dubai Bank Ltd v Galadari (No 7) [1992] 1 WLR 148, 150, 151
106 . . .  228
Duff Development Co Ltd v Kelantan G (A Minor) (Child Abuse: Standard of Proof),
Government [1924] AC 797 . . .  413 Re [1994] 1 FLR 419 . . .  52
xviii
Table of C ases

Gäfgen v Germany (2010) 52 EHRR 1 . . .  116 Hall v R [1971] 1 WLR 298 . . .  127

Gaskin v Liverpool City Council [1980] 1 WLR Hamed v R [2011] NZSC 101 . . .  190
1549 . . .  208 Hampton v US 425 US 484 (1976) . . .  194
Gatland v Metropolitan Police Commissioner Heaney and McGuinness v Ireland (2000)
[1968] 2 QB 279 . . .  41 33 EHRR 12 . . .  150
Gattellaro v Westpac Banking Corporation Heather (Inspector of Taxes) v P-E
[2004] HCA 6 . . .  410 Consulting Group Ltd [1973]
Geest plc v Lansiquot [2002] UKPC 48, [2002] 1 Ch 189 . . .  413, 414
WLR 3111 . . .  45 Hennessy v Wright (1888) 21 QBD 509 . . .  206
General Accident Fire and Life Assurance Herring v US 129 S Ct 695 (2009) . . .  187
Corpn Ltd v Tanter [1984] 1 WLR 100 . . .  235 HG v R [1999] HCA 2 . . .  337
General Electric Co v Joiner 522 US 136 Hirst v Chief Constable of West Yorkshire (1986)
(1997) . . .  336 85 Cr App R 143 . . .  41
George v Eagle Air Services Ltd [2009] UKPC Hoang v France (1992) 16 EHRR 53 . . .  32
21, [2009] 1 WLR 2133 . . .  419
Hobbs v CT Tinling & Co Ltd [1929] 2
Gilbey v Great Western Rly Co (1910) 102 LT KB 1 . . .  81
202 . . .  298
Hoch v R (1988) 165 CLR 292 . . .  276
Glendarroch, The [1894] P 226 . . .  44
Hogan v DPP [2007] EWHC 978 (Admin),
Globe and Mail v Canada (Attorney General) [2007] 1 WLR 2944 . . .  43, 47
2010 SCC 41, [2010] 2 SCR 592 . . .  219
Holland v Her Majesty’s Advocate [2005]
Goddard v Nationwide Building Society [1986] 3 UKPC D1, 2005 SLT 563, [2005]
WLR 734 . . .  243, 244 HRLR 25 . . .  162
Goodis v Ontario (Ministry of Correctional Hollington v F Hewthorn & Co Ltd [1943] KB
Services) [2006] 2 SCR 32 . . .  240 587 . . .  420, 421
Goodwin v United Kingdom (1996) 22 EHRR Homes v Newman [1931] 2 Ch 112 . . .  296
123 . . .  217–19
Honeysett v R [2014] HCA 29 . . .  337
Gotha City v Sotheby’s [1998] 1 WLR
114 . . .  232, 236 Howe v Malkin (1878) 40 LT 196 . . .  296
Graham v Chorley Borough Council [2006] Hubbard v Pitt [1975] 3 All ER 1 . . .  41
EWCA Civ 92, [2006] CP Rep 24 . . .  70, 71 Hudson v DPP [1992] RTR 27 . . .  101
Grant v Downs (1976) 135 CLR 674 . . .  233 Hudson v Michigan 547 US 586 (2006) . . .  187
Gray v Maryland 523 US 185 (1998) . . .  118 Huth v Huth [1915] 3 KB 32 . . .  411
Great Atlantic Insurance Co v Home Insurance
Co [1981] 1 WLR 529 . . .  234, 235 IBM Corporation v Phoenix International
Greenough v Eccles (1859) 5 CBNS 786, 141 (Computers) Ltd [1995] 1 All ER 413 . . .  243
ER 315 . . .  73 IJL v UK (2000) 33 EHRR 11 . . .  149
Gregory v Tavernor (1833) 6 C & P 280, 172 ER Illinois v Krull 480 US 340 (1987) . . .  186
1241 . . .  75 Ingram v Percival [1969] 1 QB 548 . . .  411, 412
Griffiths v DPP [2002] EWHC 792 (Admin), INS v Lopez-Mendoza 468 US 1032
(2002) 166 JP 629 . . .  415 (1984) . . .  186
Grobbelaar v Sun Newspapers Ltd (1999) The Ireland v United Kingdom (1978) 2
Times, 12 August . . .  14 EHRR 25 . . .  98
Guinness Peat Properties Ltd v Fitzroy ITC Film Distributors v Video Exchange Ltd
Robinson Partnership (a firm) [1987] 1 WLR [1982] Ch 431 . . .  244
1027 . . .  233, 243

J v Oyston [1999] 1 WLR 694 . . .  421

H (Minors) (Sexual Abuse: Standard of Proof),
Re [1996] 2 WLR 8 . . .  51–53 JB v Switzerland (Application No 31827/96)
3 May 2001 . . .  151
H v H (Minors) (Child Abuse: Evidence) [1990]
Fam 86 . . .  52 Jacobson v US 112 S Ct 1535 (1992) . . .  194, 195
H v Schering Chemicals Ltd [1983] 1 WLR Jaffee v Redmond 518 US 1 (1996) . . .  245
143 . . .  340 Jalloh v Germany (2006) 44 EHRR 32 . . .  98,
Halford v Brookes (1991) The Times, 151, 183, 184
3 October . . .  53 Janosevic v Sweden (2002) 38 EHRR 22 . . .  32
Table of C ases xix

Jones v Godrich (1845) 5 Moo PC 16, 13 ER Lucas v Barking, Havering and Redbridge
394 . . .  228 Hospitals NHS Trust [2003] EWCA Civ 1102,
Jones v University of Warwick [2003] EWCA Civ [2003] 4 All ER 720 . . .  234, 236, 237
151, [2003] 1 WLR 954 . . .  14, 191 Lyell v Kennedy (No 3) (1884) 27 Ch D 1 . . .  228
Joseph Hill & Co, In Re [2013] EWCA Crim 775,
[2014] 1 WLR 786 . . .  62 M (A Child) (Care Proceedings: Witness
Summons), Re [2007] EWCA Civ 9, [2007] 1
Kafkaris v Cyprus (2008) 49 EHRR 35 . . .  98 FCR 253 . . .  358
Kajala v Noble (1982) 75 Cr App R 149 . . .  168 M (A Minor) (Disclosure of Material), Re [1990]
Kamleh v R [2005] HCA 2 . . .  298 2 FLR 36 . . .  208
Kansal v UK (2004) 39 EHRR 31 . . .  146 M (A Minor) (Appeal) (No 2), Re [1994] 1
Karia v Director of Public Prosecutions FLR 59 . . .  52
[2002] EWHC 2175 (Admin), (2002) 166 JP M and R (Minors) (Sexual Abuse: Video
753 . . .  162 Evidence), Re [1996] 4 All ER 239 . . .  52, 320,
Kelly v Commissioner of Police of the 324, 341
Metropolis (1997) The Times, 20 MCC Proceeds Inc v Bishopgate Investment
August . . .  206 Trust plc [1999] CLC 417 . . .  330
Kennedy v UK (2010) 52 EHRR 4 . . .  178 MH v UK (Admissibility) (Application No
Khan v United Kingdom (2000) 31 EHRR 28572/95) 17 January 1997 . . .  424
45 . . .  178, 180, 182, 184, 190 MSS v Belgium and Greece (2011) 53
Khudobin v Russia (2006) 48 EHRR 22 . . .  194 EHRR 2 . . .  98
King v UK (Application No 13881/02) 8 April McCool v Rushcliffe Borough Council [1998] 3
2003 . . .  152 All ER 889 . . .  47, 53, 285
Knowles v Knowles [1962] P 161 . . .  416 MacDarmaid v A-G [1950] P 218 . . .  415
Kumho Tire Co v Carmichael 526 US 137 McGlinn v Waltham Contractors Ltd [2006]
(1999) . . .  315, 336, 337 EWHC 2322 (TCC), [2006] BLR 489 . . .  378
Kuwait Airways Corporation v Iraqi Airways Co McGreevy v DPP [1973] 1 WLR 276 . . .  50
(No 6) [2005] EWCA Civ 286, [2005] 1 WLR Mahadervan v Mahadervan [1964] P
2734 . . .  238 233 . . .  415, 416
Maher v DPP [2006] EWHC 1271 (Admin),
L (A Minor) (Police Investigation: Privilege), Re (2006) 170 JP 441 . . .  291, 304
[1996] 2 WLR 395 . . .  241, 242 Malik v Kalyan [2010] EWCA Civ 113 . . .  80
Laing v R [2013] UKPC 14, [2013] 1 WLR Malininas v Lithuania (Application No
2670 . . .  370 10071/04) 1 July 2008 . . .  194
Lam Chi-ming v R [1991] 2 AC 212 . . .  114, 115 Marks v Beyfus (1890) 25 QBD 494 . . .  209
Langford v The State [2005] UKPC Marlwood Commercial Inc v Kozeny [2004]
20 . . .  155, 157 EWCA Civ 798, [2004] 3 All ER 648 . . .  59
Lau Pak Ngam v R [1966] Crim LR 443 . . .  76 Martin v McGuiness 2003 SLT 1424 . . .  192
Laurie v Raglan Building Co [1942] 1 Maryland v Craig 497 US 836 (1990) . . .  386
KB 152 . . .  70 Masciale v US 356 US 386 (1958) . . .  194
Lawrence v Chester Chronicle (1986) The Times, Mathews v US 108 S Ct 883 (1988) . . .  194
8 February . . .  51 Maves v Grand Trunk Pacific Railway Co (1913)
Lillicrap v Nalder & Son (A Firm) [1993] 1 14 DLR 70 . . .  71, 72
WLR 94 . . .  235 Mawdesley v Chief Constable of the Cheshire
Li Shu-ling v R [1989] 1 AC 270 . . .  95 Constabulary [2003] EWHC 1586 (Admin),
Lloyde v West Midlands Gas Board [1971] 1 [2004] 1 WLR 1035 . . .  148
WLR 749 . . .  418 Mechanical and General Inventions Co Ltd and
Lobban v R [1995] 1 WLR 877 . . .  117, 188 Lehwess v Austin and Austin Motor Co Ltd
Logan v Commissioners of Customs & [1935] AC 346 . . .  81
Excise [2003] EWCA Civ 1068, [2004] Melbourne v R [1999] HCA 32 . . .  250
ICR 1 . . .  71 Melendez-Diaz v Massachusetts 129 S Ct 2527
Lonrho plc v Fayed (No 4) [1994] 2 WLR (2009) . . .  311
209 . . .  216 Melik & Co v Norwich Union [1980] 1 Lloyd’s
Lowery v R [1974] AC 85 . . .  319 Rep 523 . . .  233
xx
Table of C ases

Mersey Care NHS Trust v Ackroyd (No 2) [2007] Norwich Pharmacal Co v Customs and Excise
EWCA Civ 101, [2008] EMLR 1, [2007] Commissioners [1974] AC 133 . . .  208
HRLR 19 . . .  219 Nottingham City Council v Amin [2000]
Mezzo v R (1986) 30 DLR (4th) 161 . . .  158 1 WLR 1071 . . .  200
Michael O’Mara Books Ltd v Express Nye v Niblett [1918] 1 KB 23 . . .  411
Newspapers plc [1999] FSR 49 . . .  218
Michel v R [2009] UKPC 41, [2010] 1 O’Brien v Chief Constable of South Wales
WLR 879 . . .  68 [2005] UKHL 26, [2005] 2 AC 534 . . .  14, 90,
Michigan v Bryant 131 S Ct 1143 248, 264
(2011) . . .  310, 311 Öcalan v Turkey (2005) 41 EHRR 45 . . .  98
Miller v Minister of Pensions [1947] 2 All ER Oceanbulk Shipping SA v TMT Ltd [2010]
372 . . .  48, 51 UKSC 44, [2011] 1 AC 662 . . .  225
Mills v R [1995] 1 WLR 511 . . .  296 Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC
Minter v Priest [1930] AC 558 . . .  231 990 . . .  223, 225
Miranda v Arizona 384 US 436 O’Halloran and Francis v UK (2007) 46 EHRR
(1966) . . .  121, 122 21 . . .  146–48, 150, 152
Mitchell v R [1998] 2 WLR 839 . . .  11, 120 O’Rourke v Darbishire [1920] AC 581 . . .  230
M’Naghten’s Case (1843) 10 Cl & F 200, 8 ER Osland v R [1998] HCA 75 . . .  319
718 . . .  30, 31, 46
Mohammed v The State [1999] 2 WLR 552 . . .  102 P (Witness Summons), Re [1997] 2 FLR
Mohd Ali bin Burut v Public Prosecutor [1995] 2 447 . . .  358
AC 579 . . .  97, 110 PG and JH v United Kingdom (Application
Monckton v Tarr (1930) 23 BWCC 504 . . .  420 No 44787/98) 25 September 2001 . . .  178,
Moor v Moor [1954] 1 WLR 927 . . .  72 179
Mullen v Hackney London Borough Council Palmer v R [1998] HCA 2 . . .  82
[1997] 1 WLR 1103 . . .  411 Paragon Finance v Freshfields [1999] 1 WLR
Munro, Brice & Co v War Risks Association 1183 . . .  234, 235
[1918] 2 KB 78 . . .  44 Parker v Comptroller-General of Customs
Murphy v R (1989) 167 CLR 94 . . .  321 [2009] HCA 7 . . .  188
Murray v United Kingdom (1996) 22 Parkes v R [1976] 1 WLR 1251 . . .  127
EHRR 29 . . .  140 Parkin v Moon (1836) 7 Car & P 408, 173
ER 181 . . .  80
N (A Minor), Re [1996] 4 All ER 225 . . .  320 Patterson v New York 432 US 197
(1977) . . .  18
N v UK (2008) 47 EHRR 39 . . .  98
Paul v DPP (1989) 90 Cr App R 173 . . .  412
Nagy v Weston [1965] 1 All ER 78 . . .  41
Peete, Re, Peete v Crompton [1952] 2 All ER
Nationwide Building Society v Various 599 . . .  415, 416
Solicitors [1999] PNLR 52 . . .  237, 238
Pennsylvania Board of Probation and Parole v
NeaKarteria Maritime Co Ltd v Atlantic and Scott 524 US 357 (1998) . . .  186
Great Lakes Steamship Corporation [1981]
Com LR 138 . . .  234 People v Collins 438 P 2d 33 (1968) . . .  329
NederlandseReassurantieGroep Holding NV v Pereira v UK (Admissibility) (Application No
Bacon & Woodrow (A Firm) [1995] 1 All ER 40741/02) 8 April 2003 . . .  251
976 . . .  235 Perry v New Hampshire 132 S Ct 716
Ng Chun Pui v Lee Chuen Tat [1988] RTR (2012) . . .  166
298 . . .  419 Perry v United Kingdom (Admissibility)
Nicholas v Penny [1950] 2 KB 466 . . .  417 (Application No 63737/00) 26 September
2002 . . .  182
Nimmo v Alexander Cowan & Sons Ltd [1968]
AC 107 . . .  39 Persad v State of Trinidad and Tobago [2007]
UKPC 51, [2007] 1 WLR 2379 . . .  119
Norbrook Laboratories (GB) Ltd v Health
and Safety Executive (1998) The Times, 23 Pharaon v BCCI SA (in liquidation) [1998]
February . . .  411 4 All ER 455 . . .  216
North Shore Ventures Ltd v Anstead Holdings Phillips v News Group Newspapers Ltd [2012]
Inc [2012] EWCA Civ 11, [2012] WTLR UKSC 28, [2013] 1 AC 1 . . .  222
1241 . . .  59 Phipps v DPP [2012] UKPC 24 . . .  161
Table of C ases xxi

Piers v Piers (1849) 2 HL Cas 331, 9 ER R (Morgan Grenfell) v Special Commissioners

1118 . . .  416 of Income Tax [2002] UKHL 21, [2003] 1 AC
Polanski v Condé Nast Publications Ltd [2005] 563 . . .  233
UKHL 10, [2005] 1 WLR 637 . . .  377, 378 R (N) v Mental Health Review Tribunal [2005]
Polychronakis v Richards and Jerrom Ltd [1998] EWCA Civ 1605, [2006] QB 468 . . .  51, 55
JPL 588 . . .  40, 47 R (Nunn) v Chief Constable of Suffolk Police
Post Office v Estuary Radio Ltd [1967] 1 WLR [2014] UKSC 37, [2014] 3 WLR 77 . . .  61
1396 . . .  53 R (Prudential plc) v Special Comr of
Prince v Samo (1838) 7 Ad & El 627, 112 Income Tax[2013] UKSC 1, [2013] 2 AC
ER 606 . . .  68 185 . . .  228–29
Pringle v R [2003] UKPC 9 . . .  327 R (Roberts) v Parole Board [2005] UKHL 45,
Pritchard v Ontario (Human Rights [2005] 2 AC 748 . . .  213
Commission) [2004] 1 SCR 809 . . .  229 R (S) v Waltham Forest Youth Court [2004]
Prudential Assurance Co v Edmonds (1877) 2 EWHC 715 (Admin), [2004] 2 Cr App
App Cas 487 . . .  417 R 21 . . .  401
Prudential Insurance Co of America v R v A [1997] Crim LR 883 . . .  360
Prudential Assurance Co Ltd [2003] EWCA R v A (No 2) [2001] UKHL 25, [2001] 2 WLR
Civ 1154 . . .  223 1546 . . .  395–97, 400, 401, 407
Public Prosecutor v Yuvaraj [1970] 2 R v A (B) [2012] EWCA Crim 1529, [2012] 1
WLR 226 . . .  50 WLR 3378 . . .  365, 366
R v Abadom [1983] 1 WLR 126 . . .  340
R (AHK) v Home Secretary [2009] EWCA Civ R v Abdelrahman [2005] EWCA Crim
287, [2009] 1 WLR 2049 . . .  213 1367 . . .  395
R (Cleary) v Highbury Corner Magistrates’ R v Abraham (1848) 3 Cox CC 430 . . .  79
Court [2006] EWHC 1869 (Admin), [2007] R v Adams [1996] 2 Cr App R 467 . . .  328
1 WLR 1272 . . .  282, 283 R v Adams [2007] EWCA Crim 3025, [2008] 1
R (Crown Prosecution Service) v Bolton Cr App R 35 . . .  289, 304
Magistrates’ Court [2003] EWHC 2697 R v Adams (No 2) [1998] 1 Cr App R
(Admin), [2004] 1 WLR 835 . . .  221 377 . . .  328, 329
R (Crown Prosecution Service) v Registrar of R v Adinga [2003] EWCA Crim 3201 . . .  128
Births, Deaths and Marriages [2002] EWCA
Civ 1661, [2003] QB 1222 . . .  365 R v Ahluwalia [1992] 4 All ER 889 . . .  319
R (D) v Camberwell Green Youth Court [2005] R v Ahmed [2003] EWCA Crim 3627 . . .  111
UKHL 4, [2005] 1 WLR 393 . . .  386, 401, 407 R v Alladice (1988) 87 Cr App R 380 . . .  102–5
R (Grundy & Co Excavations Ltd) v Halton R v Allen [2001] UKHL 45, [2002] 1 AC
Division Magistrates’ Court [2003] EWHC 509 . . .  152
272 (Admin), (2003) 167 JP 387 . . .  42 R v All-Hilly [2014] EWCA Crim 1614, [2014] 2
R (Hackney London Borough Council) v Cr App R 33 . . .  397
Rottenberg [2007] EWHC 166 (Admin), R v Anderson [2000] 1 NZLR 667 . . .  248
[2007] Env LR 24 . . .  352 R v Andrews (Donald) [1987] AC 281 . . .  295
R (Hallinan Blackburn Gittings & Nott) v R v Anthony (Donna) [2005] EWCA Crim
Middlesex Guildhall Crown Court [2004] 952 . . .  329, 351
EWHC 2726 (Admin), [2005] 1 WLR R v Anwoir [2008] EWCA Crim 1354, [2009] 1
766 . . .  238 WLR 980 . . .  363
R (Howe) v South Durham Magistrates’ Court R v Argent [1997] 2 Cr App R 27 . . .  137, 138, 145
[2004] EWHC 362 (Admin), (2004) 168 JP
424 . . .  228 R v Aspinall [1999] 2 Cr App R 115 . . .  105
R (Kelly) v Warley Magistrates’ Court [2007] R v Ataou [1988] QB 798 . . .  239
EWHC 1836 (Admin), [2008] 1 WLR R v Athwal [2009] EWCA Crim 789, [2009] 1
2001 . . .  233 WLR 2430 . . .  77
R (McCann & Others) v Crown Court of R v Atkins [2009] EWCA Crim 1876, [2010] 1 Cr
Manchester [2002] UKHL 39, [2002] 3 WLR App R 8, (2009) 173 JP 529 . . .  333, 342
1313 . . .  55, 282 R v Aucoin 2012 SCC 66, [2012] 3 SCR
R (Mohamed) v Secretary of State for Foreign 408 . . .  187
and Commonwealth Affairs [2008] EWHC R v Austin (Herbert) [2013] EWCA Crim 1028,
2048 (Admin), [2009] 1 WLR 2579 . . .  207 [2014] 1 WLR 1045 . . .  214
xxii
Table of C ases

R v Avetysan [2000] 2 SCR 745 . . .  48 R v Boal [1965] 1 QB 402 . . .  364

R v Aziz [1995] 3 WLR 53 . . .  113, 251, 252 R v Bottrill, ex p Kuechenmeister [1947]
R v B [2003] EWCA Crim 3080 . . .  128 KB 41 . . .  413
R v B [2003] EWCA Crim 951, [2003] 1 WLR R v Bowman [2014] EWCA Crim
2809 . . .  82 716 . . .  263, 264
R v B [2010] EWCA Crim 4 . . .  356, 376 R v Bovell [2005] EWCA Crim 1091, [2005]
2 Cr App R 27 . . .  270
R v B (C) [2004] EWCA Crim 1254, [2004] 2 Cr
App R 34 . . .  266 R v Bradley [2005] EWCA Crim 20, [2005]
1 Cr App R 24 . . .  253
R v B (SA) [2003] 2 SCR 678 . . .  148
R v Bray (1988) unreported, 31 July, CA . . .  177
R v B (T) [2006] EWCA Crim 417, [2006] 2 Cr
App R 3 . . .  333 R v Bresa [2005] EWCA Crim 1414 . . .  128, 144
R v Bailey [1995] 2 Cr App R 262 . . .  112 R v Brewster [2010] EWCA Crim 1194, [2011]
1 WLR 601 . . .  278
R v Baker (1912) 7 Cr App R 252 . . .  248
R v Britton [1987] 1 WLR 539 . . .  75
R v Baldree 2013 SCC 35, [2013] 2 SCR
520 . . .  287 R v Bromfield [2002] EWCA Crim 195 . . .  139
R v Ball [1911] AC 47 . . .  6 R v Brooks [2000] 1 SCR 237 . . .  373
R v Ball [2005] EWCA Crim 2826, [2006] 1 WLR R v Brophy [1982] AC 476 . . .  120
2948 . . .  270 R v Brown [1997] 1 Cr App R 112 . . .  65, 70
R v Barry [2010] EWCA Crim 195, [2010] 2 All R v Brown [1998] 2 Cr App R 364 . . .  377
ER 1004 . . .  361 R v Brown [2002] 2 SCR 185 . . .  240, 241
R v Barton [1973] 1 WLR 115 . . .  239 R v Brown [2004] EWCA Crim 1620 . . .  386
R v Baskerville [1916] 2 KB 658 . . .  368 R v Bryce [1992] 4 All ER 567 . . .  196
R v Beard [1998] Crim LR 585 . . .  89 R v Buckley (1873) 13 Cox CC 293 . . .  297
R v Beattie (1989) 89 Cr App R 302 . . .  85 R v Bullen [2008] EWCA Crim 4, [2008] 2 Cr
R v Beauchamp [2000] 2 SCR 720 . . .  48 App R 25 . . .  264
R v Beaulieu 2010 SCC 7, [2010] 1 SCR R v Burge and Pegg [1996] 1 Cr App R
248 . . .  187 163 . . . 374, 375
R v Beck [1982] 1 WLR 461 . . .  369 R v Busby (1981) 75 Cr App R 79 . . .  83, 87, 88
R v Beckles [2004] EWCA Crim 2766, [2005] 1 R v Button [2005] EWCA Crim 516 . . .  179
All ER 705 . . .  135 R v C [2006] EWCA Crim 1079, [2006] 1 WLR
R v Becouarn [2005] UKHL 55, [2005] 1 WLR 2994 . . .  274
2589 . . .  361 R v C [2007] EWCA Crim 2581, [2008] 1 WLR
R v Bell [1998] Crim LR 879 . . .  165 966 . . .  394
R v Ben-Rejab [2011] EWCA Crim 1136, [2012] 1 R v C [2010] EWCA Crim 2578, [2011] 3 All ER
WLR 2364 . . .  394 509 . . .  327
R v Bentley [1991] Crim LR 620 . . .  157 R v C (JW) [2010] EWCA Crim 2971, [2011]
1 WLR 1942 . . .  426
R v Bentley (Deceased) [2001] 1 Cr App R
21 . . .  48, 50 R v Cain [1994] 1 WLR 1449 . . .  251
R v Berriman (1854) 6 Cox CC 388 . . .  114 R v Callender [1998] Crim LR 337 . . .  296
R v Betts and Hall [2001] EWCA Crim 224, R v Campbell [1995] 1 Cr App R 522 . . .  111
[2001] 2 Cr App R 16 . . .  133–35 R v Campbell [1999] 1 SCR 565 . . .  199
R v Billingham [2009] EWCA Crim 19, [2009] R v Campbell [2006] EWCA Crim 1305 . . .  253
2 Cr App R 20 . . .  74, 292 R v Campbell [2007] EWCA Crim 1472, [2007]
R v Bingham [1999] 1 WLR 598 . . .  359 1 WLR 2798 . . .  10, 252, 258, 262, 271
R v Birchall (1998) The Times, 10 R v Camplin [1978] AC 705 . . .  319
February . . .  362 R v Canale [1990] 2 All ER 187 . . .  102, 107,
R v Bisson [1998] 1 SCR 306 . . .  50 110, 173
R v Blackman 2008 SCC 37, [2008] 2 SCR R v Cannings [2004] EWCA Crim 01, [2004]
298 . . .  306 2 Cr App R 7 . . .  314, 351, 352
R v Blastland [1986] AC 41 . . .  297 R v Cape [1996] 1 Cr App R 191 . . .  156
R v Blenkinsop [1995] 1 Cr App R 7 . . .  167 R v Cargill (1913) 8 Cr App R 224 . . .  15
R v Bliss (1837) 7 Ad & El 550, 112 ER R v Carr-Briant [1943] KB 607 . . .  50
577 . . .  296 R v Carrera [2002] EWCA Crim 2527 . . .  34
Table of C ases xxiii

R v Carroll (1993) 99 Cr App R 381 . . .  369 R v Cooper [2010] EWCA Crim 979, [2010] 1
R v Causley [1999] Crim LR 572 . . .  124, 372 WLR 2390 . . .  369
R v Central Criminal Court, ex p Francis & R v Coulman (1927) 20 Cr App R 106 . . .  248
Francis (A Firm) [1989] AC 346 . . .  227, R v Couture [2007] 2 SCR 517 . . .  306
238, 239 R v Cowan, Gayle and Ricciardi [1995] 3 WLR
R v Chalkley and Jeffries [1998] 2 All ER 818 . . .  361
155 . . .  176, 177, 186, 188 R v Cox (1884) 14 QBD 153 . . .  238
R v Chal [2007] EWCA Crim 2647, [2008] 1 Cr R v Cox [1991] Crim LR 276 . . .  112
App R 18 . . .  286
R v Cox [2012] EWCA Crim 549, [2012] 2 Cr
R v Chard (1971) 56 Cr App R 268 . . .  318 App R 6, (2012) 176 JP 549 . . .  404
R v Chargot Ltd (trading as Contract Services) R v Crampton (1990) 92 Cr App R
[2008] UKHL 73, [2009] 1 WLR 1 . . .  35 369 . . .  99, 100
R v Charles [2009] EWCA Crim 1570, [2010] 1 R v Curry [1988] Crim LR 527 . . .  424
WLR 644 . . .  41
R v Curtin (1996) unreported, 24
R v Chaulk (1990) 62 CCC (3d) 193 . . .  31 May, CA . . .  363
R v Chenia [2002] EWCA Crim 2345, [2003] 2 R v D [2003] EWCA Crim 2424, [2004] 1 Cr App
Cr App R 6 . . .  132, 139, 161 R 19 . . .  276
R v Chief Constable of West Midlands Police, ex R v D [2009] EWCA Crim 2137 . . .  398
p Wiley [1995] 1 AC 274 . . .  206–8
R v D (N) [2011] EWCA Crim 1474,
R v Chinn [2012] EWCA Crim 501, [2012] 1
[2013] 1 WLR 676 . . .  259, 260, 265,
WLR 3401 . . .  77, 78
267–69
R v Chopra [2006] EWCA Crim 2133, [2007] 1
R v Dallagher [2002] EWCA Crim 1903, [2003]
Cr App R 16 . . .  272, 273
1 Cr App R 12 . . .  335
R v Christie [1914] AC 545 . . .  127
R v Dalloz (1908) 1 Cr App R 258 . . .  6
R v Christou [1992] QB 979 . . .  101, 196
R v Darrach [2000] 2 SCR 443 . . .  393
R v Christou [1997] AC 117 . . .  275
R v Dat [1998] Crim LR 488 . . .  73
R v City of Birmingham District Council, ex p O
R v Davies [2004] EWCA Crim 1389 . . .  397
[1982] 2 All ER 356 . . .  208
R v Davies [2007] EWCA Crim 1237, [2007] 1
R v Clare [1995] 2 Cr App R 333 . . .  167
WLR 2467 . . .  290
R v Clark [2003] EWCA Crim 1020, [2003] 2
FCR 447 . . .  329 R v Davis [2008] EWCA Crim 1156, [2009] 2 Cr
App R 17, (2008) 172 JP 358 . . .  258, 259
R v Clark [2006] EWCA Crim 231 . . .  321
R v Davis [2008] UKHL 36, [2008] 1 AC
R v Clarke [1969] 1 WLR 1109 . . .  46 1128 . . .  405, 407
R v Clarke [1995] 2 Cr App R 425 . . .  332, 333 R v Davis, Johnson and Rowe [1993] 1 WLR
R v Clarke [2011] EWCA Crim 939, (2011) 175 JP 613 . . .  212
281 . . .  270
R v Delaney (1988) 88 Cr App R 338 . . .  102, 173
R v Clements [2009] EWCA Crim 2726 . . .  264
R v Derby Magistrates’ Court, ex p B [1996] AC
R v Clift [2012] EWCA Crim 2750, [2013] 1 WLR 487 . . .  226, 227, 239–42
2093 . . .  427
R v Dervish [2001] EWCA Crim 2789, [2002] 2
R v Clipston [2011] EWCA Crim 446, [2011] 2 Cr Cr App R 6 . . .  145
App R (S) 101 . . .  286
R v Devine 2008 SCC 36, [2008] 2 SCR
R v Coates [2007] EWCA Crim 1471, [2008] 1 Cr 283 . . .  306
App R 3 . . .  74
R v Dhorajiwala [2010] EWCA Crim 1237, [2010]
R v Cole [2008] EWCA Crim 3234 . . .  67 2 Cr App R 21, (2010) 174 JP 401 . . .  96
R v Cole 2012 SCC 53, [2012] 3 SCR 34 . . .  187 R v Dizaei [2013] EWCA Crim 88, [2013] 1 WLR
R v Coles [1995] 1 Cr App R 157 . . .  318 2257 . . .  278
R v Collins [2004] EWCA Crim 83, [2004] 1 R v Dlugosz [2013] EWCA Crim 2, [2013] 1 Cr
WLR 1705 . . .  127 App R 32 . . .  327, 328
R v Colwill [2002] EWCA Crim 1320 . . .  89 R v DPP, ex p Kebilene [1999] 3 WLR
R v Compton [2002] EWCA Crim 2835 . . .  142 972 . . .  26, 32
R v Conti (1973) 58 Cr App R 387 . . .  364 R v Director of Serious Fraud Office, ex p Smith
R v Cooke [1995] 1 Cr App R 318 . . .  175, [1993] AC 1 . . .  151
176, 186 R v Dixon (2000) 164 JP 721 . . .  424
xxiv
Table of C ases

R v Dixon (Jordan) [2013] EWCA Crim 465, R v Field, ex p White (1895) 64 LJMC 158 . . .  412
[2014] 1 WLR 525 . . .  360, 362 R v Finch [2007] EWCA Crim 36, [2007] 1 WLR
R v Dodson [1984] 1 WLR 971 . . .  166–68 1645 . . .  119, 301, 302
R v Doheny and Adams [1997] 1 Cr App R R v Flemming (1987) 86 Cr App R 32 . . .  94
369 . . .  325, 327, 328 R v Fontaine [2004] 1 SCR 702 . . .  30
R v Doldur (1999) The Times, 7 R v Foran [2014] EWCA Crim 2047 . . .  87
December . . .  160 R v Forbes [2001] 1 AC 473 . . .  164
R v Donaldson (1976) 64 Cr App R 59 . . .  79 R v Foster [2003] EWCA Crim 178 . . .  97
R v Donat (1985) 82 Cr App R 173 . . .  299 R v Fowkes (1856) The Times, 8 March . . .  79
R v Doncaster [2008] EWCA Crim 5, (2008) 172 R v Francom [2001] 1 Cr App R 17 . . .  139
JP 202 . . .  262
R v Freeman [2008] EWCA Crim 1863, [2009] 1
R v Dow [2003] EWCA Crim 3621 . . .  139 WLR 2723 . . .  273
R v Downes and Rawlinson (1993) The Times, 10 R v Friend [1997] 2 All ER 1011 . . .  360
December . . .  113
R v Frixou [1998] Crim LR 352 . . .  67
R v Downey [1995] 1 Cr App R 547 . . .  167
R v Frost (1839) 9 Car & P 129, 173 ER 771 . . .  71
R v Doyle [2002] EWCA Crim 1176 . . .  105
R v Fulling [1987] QB 426 . . .  96–98
R v Dunbar [1958] 1 QB 1 . . .  50
R v Funderburk [1990] 1 WLR 587 . . .  83, 84,
R v Duncan (1981) 73 Cr App R 359 . . .  113 87, 89, 90
R v Dunford (1990) 91 Cr App R 150 . . .  102, 103 R v G [2004] EWCA Crim 1240, [2004] 2 Cr App
R v Dunn (1990) 91 Cr App R 237 . . .  102, R 38 . . .  317
107, 173 R v GH [2009] EWCA Crim 2899, (2009) 174 JP
R v Dures [1997] 2 Cr App R 247 . . .  14, 108 203 . . .  277
R v E [2004] EWCA Crim 1313 . . .  394 R v Galbraith [1981] 1 WLR 1039 . . .  69, 70, 113
R v Edwards [1975] QB 27 . . .  39, 41 R v Gallagher [1974] 1 WLR 1204 . . .  7
R v Edwards (1983) 77 Cr App R 5 . . .  50 R v Gardner [2004] EWCA Crim 1639 . . .  9
R v Edwards [1991] 1 WLR 207 . . .  4, 82, 83, R v Gayle [1999] 2 Cr App R 130 . . .  160
87–90, 195 R v Genus and Britton [1996] Crim LR
R v Edwards [1998] Crim LR 207 . . .  5 502 . . .  375
R v Edwards [2005] EWCA Crim 3244, [2006] 1 R v Ghulam [2009] EWCA Crim 2285, [2010] 1
WLR 1524 . . .  256, 258, 264 WLR 891 . . .  317
R v El-Hannachi [1998] 2 Cr App R 226 . . .  156, R v Gilfoyle [2001] 2 Cr App R 5 . . .  323
157, 164, 165 R v Gill [1963] 1 WLR 841 . . .  46
R v Ellis [1910] 2 KB 746 . . .  250 R v Gill [1989] Crim LR 358 . . .  195
R v Ellis [1998] Crim LR 660 . . .  81 R v Gill [2001] 1 Cr App R 11 . . .  139
R v Emmerson (1990) 92 Cr App R 284 . . .  97 R v Gill [2003] EWCA Crim 2256, [2003] 4 All
R v Everett [1988] Crim LR 826 . . .  323 ER 681 . . .  104, 105
R v Exall (1866) 4 F & F 922, 176 ER 850 . . .  5 R v Gillard (1990) 92 Cr App R 61 . . .  110
R v F [2005] EWCA Crim 493, [2005] 1 WLR R v Gjoni [2014] EWCA Crim 691 . . .  395
2848 . . .  398 R v Glaves [1993] Crim LR 685 . . .  110
R v F (WJ) [1999] 3 SCR 569 . . .  306 R v Gloster (1888) 16 Cox CC 471 . . .  298
R v Fagan [2012] EWCA Crim 2248 . . .  310 R v Goldenberg (1988) 88 Cr App R
R v Fahy [2002] EWCA Crim 525 . . .  83 285 . . .  98, 110
R v Faraz [2012] EWCA Crim 2820, [2013] 1 R v Gordon [2002] EWCA Crim 01 . . .  75
WLR 2615 . . .  5 R v Gould (1840) 9 C & P 364 . . .  115
R v Farnham Justices, ex p Gibson (1991) 155 JP R v Gowland-Wynn [2002] 1 Cr App R 41 . . .  139
792 . . .  359 R v Grafton [1993] QB 101 . . .  66
R v Farr (1998) 163 JP 193 . . .  12 R v Grant [1996] 1 Cr App R 73 . . .  5
R v Fenlon (1980) 71 Cr App R 307 . . .  82 R v Grant 2009 SCC 32, [2009] 2 SCR
R v Ferdinand[2014] EWCA Crim 1243, [2014] 2 353 . . .  185, 187, 188
Cr App R 23 . . .  334 R v Gray (1973) 58 Cr App R 177 . . .  50
R v Fergus (1993) 98 Cr App R 313 . . .  156 R v Gray [1995] 2 Cr App R 100 . . .  251, 299
R v Ferguson (1909) 2 Cr App R 250 . . .  248 R v Gray (1998) The Times, 9 March . . .  80
Table of C ases xxv

R v Grayson [1993] Crim LR 864 . . .  113 R v Hertfordshire County Council, ex p Green

R v Greene [2009] EWCA Crim 2282 . . .  73, 74 Environmental Industries [2000] 2 WLR
R v Griffin [1998] Crim LR 418 . . .  140 373 . . .  148, 149, 151
R v Griffin 2009 SCC 28, [2009] 2 SCR 42 . . .  48 R v Hewitt (1991) 95 Cr App R 81 . . .  211
R v Griffiths [1998] Crim LR 567 . . .  5 R v Highton [2005] EWCA Crim 1985, [2005] 1
WLR 3472 . . .  258
R v Gummerson [1999] Crim LR 680 . . .  161
R v Hill [1996] Crim LR 419 . . .  375
R v Gunden [1997] Crim LR 903 . . .  65
R v Hilton [1972] 1 QB 421 . . .  359
R v Gunewardene [1951] 2 KB 600 . . .  117
R v Hoare [2004] EWCA Crim 784, [2005] 1 Cr
R v Guney [1998] 2 Cr App R 242 . . .  3, 5
App R 22 . . .  135
R v Gunning (1980) 98 Cr App R 303 . . .  66
R v Hobson (Andrew) [2013] EWCA Crim 819,
R v H [1995] 2 AC 596 . . .  274 [2013] 1 WLR 3733 . . .  362
R v H [2004] UKHL 3, [2004] 2 WLR R v Hodges and Walker [2003] EWCA Crim 290,
335 . . .  205, 212–15 [2003] 2 Cr App R 15 . . .  331, 340
R v H (PG) [2005] EWCA Crim 2083, [2006] 1
R v Holloran [2003] EWCA Crim 3282 . . .  113
Cr App R 4 . . .  286
R v Home Secretary, ex p Khawaja [1984]
R v Hacker [1994] 1 WLR 1659 . . .  253
AC 74 . . .  54
R v Hall-Chung [2007] EWCA Crim
R v Home Secretary, ex p Rahman [1997] 3 WLR
3429 . . .  136, 255
990 . . .  54, 285
R v Hamer [2010] EWCA Crim 2053, [2011] 1
R v Horncastle [2009] UKSC 14, [2010] 2 AC
WLR 528 . . .  252
373 . . .  307, 308
R v Hamid (1979) 69 Cr App R 324 . . .  369
R v Horseferry Road Magistrates’ Court, ex p
R v Hamilton (1998) The Times, 25 July . . .  72 Bennett [1994] 1 AC 42 . . .  174–76, 183
R v Hampshire County Council, ex p Ellerton R v Horseferry Road Magistrates’ Court, ex p
[1985] 1 WLR 749 . . .  54 Bennett (No 2) [1994] 1 All ER 289 . . .  210
R v Hampson [2012] EWCA Crim 1807, [2014] 1 R v Howell [2003] EWCA Crim 1, [2005] 1 Cr
Cr App R 4 . . .  378 App R 1 . . .  133–35
R v Hanson [2005] EWCA Crim 824, [2005] 1 R v Howes [2007] EWCA Crim 3219 . . .  67
WLR 3169 . . .  257, 258, 260–62, 269, 272
R v Huckerby [2004] EWCA Crim
R v Hardy [2002] EWCA Crim 3012, [2003] 1 Cr 3251 . . .  319, 323
App R 30 . . .  182
R v Humphris [2005] EWCA Crim 2030, (2005)
R v Haringey Justices, ex p DPP [1996] 2
169 JP 441 . . .  292
WLR 114 . . .  66
R v Hunt [1987] AC 352 . . .  38–41, 43
R v Harris [2005] EWCA Crim 1980, [2006] 1 Cr
App R 5 . . .  333 R v Hurley 2010 SCC 18, [2010] 1 SCR
637 . . .  373
R v Harrison 2009 SCC 34, [2009] 2 SCR
494 . . .  187, 188 R v Hurst [1995] 1 Cr App R 82 . . .  319
R v Harron [1996] 2 Cr App R 457 . . .  375 R v Hutchinson (1985) 82 Cr App R 51 . . .  71
R v Hart (1932) 23 Cr App R 202 . . .  82 R v Ibrahim [2008] EWCA Crim 880, [2009] 1
WLR 578 . . .  108, 109
R v Harwood [1989] Crim LR 285 . . .  195
R v Ibrahim [2012] EWCA Crim 837, [2012] 4 All
R v Harz [1967] AC 760 . . .  3
ER 225 . . .  309
R v Hasan [2005] UKHL 22, [2005] 2
WLR 709 . . .  95 R v Ikram [2008] EWCA Crim 586, [2009] 1
WLR 1419 . . .  69
R v Hassan [2004] EWCA Crim 1478 . . .  160
R v Illes 2008 SCC 57, [2008] 3 SCR 134 . . .  113
R v Hay 2013 SCC 61, [2013] 3 SCR 694 . . .  159
R v Imoro 2010 SCC 50, [2010] 3 SCR 62 . . .  199
R v Hayter [2005] UKHL 6, [2005] 1 WLR
605 . . .  92, 117, 119, 251 R v Inch (1989) 91 Cr App R 51 . . .  330
R v Heaton [1993] Crim LR 593 . . .  323 R v Ireland (1970) 126 CLR 321 . . .  188
R v Henderson [2010] EWCA Crim 1269, [2010] R v Ismail [1990] Crim LR 109 . . .  110
2 Cr App R 24 . . .  353 R v J [2003] EWCA Crim 3309 . . .  100
R v Hennessey (1978) 68 Cr App R 419 . . .  209 R v JZS 2010 SCC 1, [2010] 1 SCR 3 . . .  386
R v Hepworth and Fearnley [1955] 2 QB R v Jackson [1996] 2 Cr App R 420 . . .  340
600 . . .  48, 49 R v James [2014] EWCA Crim 1215 . . .  139
R v Hersey [1998] Crim LR 281 . . .  162 R v Jamieson [2003] EWCA Crim 3755 . . .  296
xxvi
Table of C ases

R v Jarvis [2002] 3 SCR 757 . . .  148 R v Knight [2003] EWCA Crim 1977, [2004] 1
R v Jefferson [1994] 1 All ER 270 . . .  117 WLR 340 . . .  129, 130, 134, 135
R v Jefford [2003] EWCA Crim 1987 . . .  375 R v Kritz [1950] 1 KB 82 . . .  48
R v Jeffries [1997] Crim LR 819 . . .  331 R v L [2008] EWCA Crim 973, [2009] 1 WLR
R v Jelen (1989) 90 Cr App R 456 . . .  101 626 . . .  303, 304, 365
R v L (DO) [1993] 4 SCR 419 . . .  386
R v Jobe [2004] EWCA Crim 3155 . . .  73
R v Lamaletie [2008] EWCA Crim 314, (2008)
R v John [1973] Crim LR 113 . . .  162
172 JP 249 . . .  270, 271
R v Johnson [1988] 1 WLR 1377 . . .  210
R v Lambert [2001] UKHL 37, [2001] 3 WLR
R v Johnson [2005] EWCA Crim 971 . . .  129 206 . . .  27, 33, 34
R v Johnson [2009] EWCA Crim 649, [2009] 2 R v Lamont [1989] Crim LR 813 . . .  112
Cr App R 7 . . .  260
R v Land [1998] 1 Cr App R 301 . . .  324
R v Johnstone [2003] UKHL 28, [2003] 1 WLR
R v Latif and Shahzad [1996] 1 WLR 104 . . .  174,
1736 . . .  34, 36
176, 197, 198
R v Jones [1970] 1 WLR 16 . . .  414
R v Lawless (1993) 98 Cr App R 342 . . .  81
R v Jones [1997] 2 Cr App R 119 . . .  299
R v Lawrence [2002] Crim LR 584 . . .  181
R v Jones [2003] EWCA Crim 1966, [2004] 1 Cr
R v Lawson [1998] Crim LR 883 . . .  296
App R 5 . . .  373
R v Lawson [2006] EWCA Crim 2572, [2007] 1
R v Jones [2010] EWCA Crim 925, [2010] 3 All
WLR 1191 . . .  266, 267, 272
ER 1186 . . .  202
R v Law-Thompson [1997] Crim LR 674 . . .  99
R v Peterborough Justices, ex p Hicks [1977] 1
WLR 1371 . . .  228 R v Layton 2009 SCC 36, [2009] 2
SCR 540 . . .  48
R v K [2006] EWCA Crim 472, [2006] 2 Cr App
R 10 . . .  382 R v Lazarus [2004] EWCA Crim 1962 . . .  113
R v K(A) [2009] EWCA Crim 1640, [2010] QB R v Lee [1976] 1 WLR 71 . . .  250
343 . . .  148 R v Leipert (1997) 143 DLR (4th) 38 . . .  209
R v K (TD) (1992) 97 Cr App R 342 . . .  205 R v Levogiannis [1993] 4 SCR 475 . . .  386
R v Kai-Whitewind [2005] EWCA Crim 1092, R v Lewes Justices, ex p Secretary of State for the
[2005] 2 Cr App R 31 . . .  352 Home Department [1973] AC 388 . . .  205,
R v Karapetyan [2013] EWCA Crim 74 . . .  136 206, 208
R v Keane [1994] 1 WLR 746 . . .  209 R v Ley [2006] EWCA Crim 3063, [2007] 1 Cr
App R 25 . . .  156
R v Kearley [1992] 2 AC 228 . . .  3, 23, 286,
287, 296 R v Liew [1999] 3 SCR 227 . . .  196
R v Kearns [2002] EWCA Crim 748, [2002] 1 R v Lifchus [1997] 3 SCR 320 . . .  48–50
WLR 2815 . . .  149 R v Lloyd [2000] 2 Cr App R 355 . . .  251
R v Keast [1998] Crim LR 748 . . .  63 R v Lobell [1957] 1 QB 547 . . .  46
R v Keenan [1990] 2 QB 54 . . .  102, 106, 107, 173 R v Looseley; Attorney-General’s Reference (No
R v Kelly (1998) 162 JP 231 . . .  164, 165 3 of 2000) [2001] UKHL 53, [2001] 1 WLR
2060 . . .  198–203
R v Kemble [1990] 1 WLR 1111 . . .  358
R v Lovelock (1997) The Times, 5 June . . .  5
R v Kempster [1989] 1 WLR 1125 . . .  424
R v Loveridge [2001] EWCA Crim 973, [2001] 2
R v Kennedy [1999] 1 Cr App R 54 . . .  195 Cr App R 29 . . .  181
R v Kenny (1993) The Times, 27 July . . .  111 R v Lowe [2003] EWCA Crim 3182 . . .  128
R v Keogh [2007] EWCA Crim 528, [2007] 1 R v Lucas [1981] QB 720 . . .  374, 375
WLR 1500 . . .  38
R v Luffe (1807) 8 East 193, 103 ER 316 . . .  411
R v Khan [1990] 2 SCR 531 . . .  306
R v Luttrell [2004] EWCA Crim 1344, [2004] 2
R v Khan [1997] Crim LR 584 . . .  165, 166 Cr App R 31 . . .  18, 315, 333
R v Khan [2007] EWCA Crim 2331 . . .  222 R v M (E) [2014] EWCA Crim 1523, [2014] 2 Cr
R v Khan (Sultan) [1997] AC 558 . . .  101, 185 App R 29 . . .  270
R v Khazaal [2012] HCA 26 . . .  30 R v M (I) [2011] EWCA Crim 868, [2012] 1 Cr
R v Khela 2009 SCC 4, [2009] 1 SCR 104 . . .  373 App R 3 . . .  129
R v Khelawon [2006] 2 SCR 787 . . .  306 R v Mack (1988) 44 CCC (3d) 513 . . .  199
R v King [1983] 1 WLR 411 . . .  228 R v Mack 2014 SCC 58 . . .  373
R v Kirk [2000] 1 WLR 567 . . .  104 R v MacKenney (1981) 76 Cr App R 271 . . .  320
Table of C ases xxvii

R v McCarthy [1996] Crim LR 818 . . .  177 R v Miah [1997] 2 Cr App R 12 . . .  251

R v McClure [2001] 1 SCR 445 . . .  241 R v Middleton (2000) The Times, 12
R v McDonald [2004] EWCA Crim 2614 . . .  215 April . . .  374
R v McEvoy [1997] Crim LR 887 . . .  164, 165 R v Milford [2001] Crim LR 330 . . .  132, 139
R v McEwan [2011] EWCA Crim 1026 . . .  356 R v Milk Marketing Board, ex p Austin (1983)
R v McGarry [1999] 1 Cr App R 377 . . .  139 The Times, 21 March . . .  54
R v McGovern (1990) 92 Cr App R 228 . . .  99, R v Miller [1998] Crim LR 209 . . .  107
100, 110 R v Mirza [2004] UKHL 2, [2004] 1 AC
R v MacKenney (1981) 76 Cr App R 271 . . .  320 1118 . . .  21
R v McKenzie (Practice Note) [1993] 1 WLR R v Mitchell (1892) 17 Cox CC 503 . . .  127
453 . . .  69, 113, 124 R v Mitchell [2004] EWCA Crim 1928 . . .  327
R v McLean [2007] EWCA Crim 219, [2008] 1 Cr R v Moghal (1977) 65 Cr App R 56 . . .  297, 298
App R 11 . . .  302 R v Molloy (Deceased) [1997] 2 Cr App R
R v Macmath [1997] Crim LR 586 . . .  156, 283 . . .  227
158, 165 R v Moon [1969] 1 WLR 1705 . . .  44
R v McNamara [1996] Crim LR 750 . . .  167 R v Morelli 2010 SCC 8, [2010] 1 SCR
R v McNeill [2007] EWCA Crim 2927, (2007) 253 . . .  187, 188
172 JP 50 . . .  256 R v Morris [1995] 2 Cr App R 69 . . .  5
R v MacPherson [2005] EWCA Crim 3605, R v Morris [1998] 1 Cr App R 386 . . .  318
[2006] 1 Cr App R 30 . . .  356 R v Moss (1990) 91 Cr App R 371 . . .  112
R v Maggs (1990) 91 Cr App R 243 . . .  8 R v Mountford [1999] Crim LR 575 . . .  139
R v Mahmood and Manzur [1997] 1 Cr App R R v Moustakim [2008] EWCA Crim
414 . . .  424, 425 3096 . . .  252
R v Major [2010] EWCA Crim 3016, [2011] 1 Cr R v Mukadi [2003] EWCA Crim
App R 25 . . .  53 3765 . . .  394, 399
R v Makanjuola [1995] 1 WLR 1348 . . .  370, 371 R v Mullen [1999] 2 Cr App R 143 . . .  174, 175
R v Makuwa [2006] EWCA Crim 175, [2006] 1 R v Mullen [2004] EWCA Crim 602, [2004] 2 Cr
WLR 2755 . . .  38, 43, 47 App R 18 . . . 383
R v Malcolm [2011] EWCA Crim 2069 . . .  67 R v Murray [1997] 2 Cr App R 136 . . .  299
R v Malicki [2009] EWCA Crim 365 . . .  356
R v Murrell [2005] EWCA Crim 382 . . .  266
R v Malik [2000] 2 Cr App R 8 . . .  5, 87
R v Mushtaq [2002] EWCA Crim 1943 . . .  94
R v Mangena [2009] EWCA Crim 2535, (2009)
R v Mushtaq [2005] UKHL 25, [2005] 1 WLR
174 JP 67 . . .  75
1513 . . .  100
R v Manister [2005] EWCA Crim 2866, [2006] 1
R v Musone [2007] EWCA Crim 1237, [2007] 1
WLR 1885 . . .  255
WLR 2467 . . .  267, 290, 305
R v Mapara [2005] 1 SCR 358 . . .  299, 307
R v Mussell (1995) unreported, 27
R v Martin [2004] EWCA Crim 916, [2004] 2 Cr February . . .  156
App R 22 . . .  395
R v Myers [1997] 3 WLR 552 . . .  119
R v Masih [1986] Crim LR 395 . . .  318
R v N [1998] Crim LR 886 . . .  12
R v Mason [1988] 1 WLR 139 . . .  102, 108, 173
R v Nagah (1990) 92 Cr App R 344 . . .  164
R v Mason [2002] EWCA Crim 385, [2002] 2 Cr
App R 38 . . .  182 R v Nagrecha [1997] 2 Cr App R 401 . . .  83, 89
R v Mathias [1989] Crim LR 64 . . .  117, 118 R v Najjar [2014] EWCA Crim 1309 . . .  167
R v Mattan (1998) The Times, 5 March . . .  153 R v Named Person B 2013 SCC 9, [2013] 1 SCR
405 . . .  209
R v Maw [1994] Crim LR 841 . . .  73, 74
R v Napper (1995) 161 JP 16 . . .  362
R v Maxwell [2010] UKSC 48, [2011] 1 WLR
1837 . . .  174 R v Nash [2004] EWCA Crim 164 . . .  375
R v Mayers [2008] EWCA Crim 2989, [2009] 1 R v National Post 2010 SCC 16, [2010] 1 SCR
WLR 1915 . . .  407 477 . . .  219
R v Meads [1996] Crim LR 519 . . .  87, 333 R v Neale [1998] Crim LR 737 . . .  82, 83
R v Mendy (1976) 64 Cr App R 4 . . .  86 R v Neil [1994] Crim LR 441 . . .  111
R v Menga and Marshalleck [1998] Crim R v Nelson [1998] 2 Cr App R 399 . . .  111
LR 58 . . .  212 R v Nelson [2006] EWCA Crim 3412 . . .  270
xxviii
Table of C ases

R v Newport [1998] Crim LR 581 . . .  296 R v Pointer [1998] Crim LR 676 . . .  144

R v Ngyuen [2008] EWCA Crim 585, [2008] 2 Cr R v Polin [1991] Crim LR 293 . . .  113
App R 9 . . .  256 R v Pook (1871) 13 Cox CC 172n . . .  297
R v Nicholas (1846) 2 Car & K 246 . . .  298 R v Popat [1998] 2 Cr App R 208 . . .  164, 165
R v Noble (1997) 146 DLR (4th) 385 . . .  359 R v Powar [2009] EWCA Crim 594, [2009] 2 Cr
R v Nolet 2010 SCC 24, [2010] 1 SCR 851 . . .  187 App R 8 . . .  407
R v Norris [2013] EWCA Crim 712 . . .  255, 256 R v Powell [2006] EWCA Crim 3, [2006] 1 Cr
R v Norton [1910] 2 KB 496 . . .  127 App R 31 . . .  357, 382
R v O [2006] EWCA Crim 556, [2006] 2 Cr App R v Press [2013] EWCA Crim 1849 . . .  252, 376
R 27 . . .  78 R v Price [2004] EWCA Crim 1359 . . .  266, 372
R v O (A) [2000] Crim LR 617 . . .  376 R v Prokofiew 2012 SCC 49, [2012] 2 SCR
R v Oakley (1979) 70 Cr App R 7 . . .  331 639 . . .  359
R v O’Brien (2000) The Times, 16 R v Putland and Sorrell [1946] 1 All ER 85 . . .  40
February . . .  323 R v Qadir [1998] Crim LR 828 . . .  155
R v O’Brien [2004] EWCA Crim 2900 . . .  44 R v Quinn [1995] 1 Cr App R 480 . . .  164, 165
R v O’Connell [2003] EWCA Crim 502 . . .  286 R v R [1994] 1 WLR 758 . . .  228
R v O’Connor (1986) 85 Cr App R 298 . . .  425 R v R [1996] Crim LR 815 . . .  371
R v Odeyemi [1999] Crim LR 828 . . .  144 R v R [2003] EWCA Crim 2754 . . .  397
R v O’Doherty [2002] NI 263, [2003] 1 Cr App R R v R (D) (1996) 107 CCC (3d) 289 . . .  341
5 . . .  331, 332 R v Rafiq [2005] EWCA Crim 1423 . . .  266
R v Okolie (2000) The Times, 16 June . . .  10, 413 R v Rahman [2003] EWCA Crim 3554 . . .  139
R v O’Leary (1988) 87 Cr App R 387 . . .  101 R v Randall [2003] UKHL 69, [2004] 1 WLR
R v Oliver [1944] KB 68 . . .  39 56 . . .  4, 13, 266
R v Osborne [2005] EWCA Crim 3082 . . .  127 R v Rankine [1986] QB 861 . . .  211
R v Osbourne [2005] EWCA Crim 2826, [2006] 1 R v Raphaie [1996] Crim LR 812 . . .  110
WLR 2948 . . .  278 R v Redd [1923] 1 KB 104 . . .  250
R v Osbourne [2007] EWCA Crim 481 . . .  255 R v Reed [2009] EWCA Crim 2698, [2010] 1 Cr
R v P [2001] 2 WLR 463 . . .  180 App R 23 . . .  327
R v P(R) [2013] EWCA Crim 2331, [2014] 1 WLR R v Reid [1994] Crim LR 442 . . .  161
3058 . . .  398 R v Renda [2005] EWCA Crim 2826, [2006] 1
R v Pan [2001] 2 SCR 344 . . .  48 WLR 2948 . . .  254, 269, 270, 272, 275, 278
R v Parchment [2003] EWCA Crim 2428 . . .  139 R v Reynolds [1989] Crim LR 220 . . .  318
R v Paris (1992) 97 Cr App R 99 . . .  97 R v Rhee [2001] 3 SCR 364 . . .  48
R v Parris (1988) 89 Cr App R 68 . . .  102, 103 R v Riat [2012] EWCA Crim 1509, [2013] 1 WLR
2592 . . .  309
R v Parrott [2001] 1 SCR 178 . . .  306
R v Richardson (1967) 51 Cr App R 381 . . .  364
R v Patel [2003] EWCA Crim 3782 . . .  5
R v Richardson [1969] 1 QB 299 . . .  88
R v Pattinson [1996] 1 Cr App R 51 . . .  157
R v Richardson [1971] 2 QB 484 . . .  76
R v Paul [1920] 2 KB 183 . . .  359
R v Rider (1986) 83 Cr App R 207 . . .  369
R v Pearce (1979) 69 Cr App R 365 . . .  79
R v Robb (1991) 93 Cr App R 161 . . .  331, 332
R v Pearce [2001] EWCA Crim 2834, [2002] 1 Cr
App R 39 . . .  364 R v Roberts [1942] 1 All ER 187 . . .  77
R v Perry (2000) The Times, 28 April . . .  181, 182 R v Roberts (1984) 80 Cr App R 89 . . .  66
R v Petkar [2003] EWCA Crim 2668, [2004] 1 Cr R v Roberts (1998) 162 JP 691 . . .  169
App R 22 . . .  138 R v Roberts [2000] Crim LR 183 . . .  161
R v Pieterson [1995] 1 WLR 293 . . .  6 R v Robertson [1968] 1 WLR 1767 . . .  31
R v Pinfold [2003] EWCA Crim 3643, [2004] 2 R v Robertson [1987] QB 920 . . .  424, 425, 427
Cr App R 5 . . .  320, 321 R v Robinson [1994] 3 All ER 346 . . .  320
R v Platten [2006] EWCA Crim 140 . . .  299 R v Robinson [1996] Crim LR 417 . . .  375
R v Plunkett [2013] EWCA Crim 261, [2013] 1 R v Robinson [2003] EWCA Crim 2219 . . .  135
WLR 3121 . . .  182 R v Rojas 2008 SCC 56, [2008] 3 SCR
R v Podola [1960] 1 QB 325 . . .  50 111 . . .  113, 373
Table of C ases xxix

R v Roncoli [1998] Crim LR 584 . . .  67 R v Somanathan [2005] EWCA Crim 2866,

R v Rowley [2012] EWCA Crim 1434, [2013] 1 [2006] 1 WLR 1885 . . .  256, 264, 268
WLR 895 . . .  289 R v Spencer [1987] AC 128 . . .  369–71
R v Rudd (1948) 32 Cr App R 138 . . .  359 R v Spencer 2014 SCC 43 . . .  187
R v Russell [2000] 2 SCR 731 . . .  48 R v Spight [1986] Crim LR 817 . . .  46
R v Russell-Jones [1995] 1 Cr App R 538 . . .  65 R v Springer [1999] 1 Cr App R (S) 217 . . .  194
R v S [2006] EWCA Crim 1404, [2007] 2 All ER R v Stafford [1968] 3 All ER 752 . . .  50
974 . . .  322 R v Staines Magistrates’ Court, ex p Westfallen
R v SAB [2003] 2 SCR 678 . . .  148 [1998] 4 All ER 210 . . .  174
R v Samuel (1956) 40 Cr App R 8 . . .  248 R v Stamford [1972] 2 QB 391 . . .  324
R v Samuel [1988] QB 615 . . .  101–3, 173 R v Starr [2000] 2 SCR 144 . . .  306
R v Samuel [2005] EWCA Crim 704 . . .  99 R v Stewart [1995] Crim LR 499 . . .  177
R v Sang [1980] AC 402 . . .  100, 172, 194 R v Stockwell (1993) 97 Cr App R 260 . . .  317,
R v Sanghera [2001] 1 Cr App R 20 . . .  180 332, 333, 341, 352
R v Sargent [2001] UKHL 54, [2001] 3 WLR R v Stone [2005] EWCA Crim 105 . . .  124, 373
992 . . .  180 R v Storey (1968) 52 Cr App R 334 . . .  79
R v Sat-Bhambra (1988) 88 Cr App R 55 . . .  101 R v Stratford Youth Court, ex p S [1998] 1 WLR
R v Sawoniuk [2000] 2 Cr App R 220 . . .  8 1758 . . .  285
R v Scarrott [1978] QB 1016 . . .  14 R v Stretton (1986) 86 Cr App R 7 . . .  81
R v Scott (1984) 79 Cr App R 49 . . .  71 R v Strudwick (1993) 99 Cr App R 326 . . .  322
R v Seaboyer (1991) 83 DLR (4th) 193 . . .  393 R v Sule [2012] EWCA Crim 1130, [2013] 1 Cr
R v Seaton [2010] EWCA Crim 1980, [2011] 1 App R 3, (2012) 176 JP 465 . . .  256
WLR 623 . . .  136 R v Swaffield (1998) 72 ALJR 339 . . .  196
R v Sekhon (1986) 85 Cr App R 19 . . .  75, 76 R v Sweet-Escott (1971) 55 Cr App R 316 . . .  81
R v Sekhon 2014 SCC 15, [2014] 1 SCR R v Sykes [1997] Crim LR 752 . . .  6
272 . . .  337 R v Sylvester [2002] EWCA Crim
R v Selvey [1970] AC 304 . . .  269 1327 . . .  99, 100
R v Senior [2004] EWCA Crim 454, [2004] 3 All R v Symonds (1924) 18 Cr App R 100 . . .  359
ER 9 . . .  105
R v T [2004] EWCA Crim 1220 . . .  397
R v Shaheed [2002] 2 NZLR 377 . . .  190
R v T [2008] EWCA Crim 815, [2008] 3 WLR
R v Shannon [2001] 1 WLR 51 . . .  194, 196, 197, 923 . . .  414
202, 203
R v T [2010] EWCA Crim 2439, [2011] 1 Cr App
R v Sharp [1988] 1 All ER 65 . . .  113 R 9 . . .  329, 330
R v Silcott and Others [1987] Crim LR R v T [2013] EWCA Crim 1488 . . .  139
765 . . .  117, 118
R v Tabbakh [2009] EWCA Crim 464, (2009) 173
R v Singh [2006] EWCA Crim 660, [2006] 1 JP 201 . . .  361
WLR 1564 . . .  287
R v Taylor (1928) 21 Cr App R 20 . . .  5
R v Singleton [2002] EWCA Crim
R v Taylor [1999] Crim LR 77 . . .  361
459 . . .  110, 111
R v Taylor [2006] EWCA Crim 260, [2006] 2 Cr
R v Skinner [2005] EWCA Crim 1439 . . .  9
App R 14 . . .  301
R v Slater [1995] 1 Cr App R 584 . . .  157
R v Theodosi [1993] RTR 179 . . .  331
R v Smith [1999] 2 Cr App R 238 . . .  70
R v Thompson (1976) 64 Cr App R 96 . . .  73
R v Smith [2003] EWCA Crim 3847 . . .  374
R v Thompson [1995] 2 Cr App R 589 . . .  13
R v Smith [2005] UKHL 12, [2005] 1 WLR
R v Thomson [1912] 3 KB 19 . . .  297
704 . . .  374
R v Thornton [1995] 1 Cr App R 578 . . .  157
R v Smith 2009 SCC 5, [2009] 1 SCR 146 . . .  373
R v Tiplady (1995) 159 JP 548 . . .  164, 165
R v Smith [2011] EWCA Crim 1296, [2011] 2 Cr
App R 16 . . .  5 R v Tirnaveanu [2007] EWCA Crim 1239, [2007]
1 WLR 3049 . . .  256
R v Smurthwaite [1994] 1 All ER
898 . . .  195–97, 202 R v Tobin [2003] EWCA Crim 190 . . .  90
R v Soames-Waring [1999] Crim LR R v Togher [2001] 3 All ER 463 . . .  26, 27
89 . . .  12, 363 R v Tompkins (1977) 67 Cr App R 181 . . .  244
xxx
Table of C ases

R v Toner (1991) 93 Cr App R 382 . . .  318 R v White [2004] EWCA Crim 946 . . .  395, 397

R v Tonnessen [1998] 2 Cr App R (S) 328 . . .  194 R v Whitnell [2013] EWCA Crim 161, [2014] 1 Cr
R v Tooke (1989) 90 Cr App R 417 . . .  79 App R 9 . . .  267
R v Tregear [1967] 2 QB 574 . . .  66 R v Whitton [1998] Crim LR 492 . . .  365
R v Trochym [2007] 1 SCR 239 . . .  337 R v Williams (David) [1998] Crim LR
R v Turnbull [1977] QB 224 . . .  18, 494 . . .  297
155–61, 167–69 R v Williams (Orette) [2012] EWCA Crim 2162,
R v Turner [1975] QB 834 . . .  319, 321, 322 [2013] 1 WLR 1200 . . .  37, 38
R v Turner [1995] 1 WLR 264 . . .  209 R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr
App R 2 . . .  391
R v Turner [2003] EWCA Crim 3108, [2004] 1
All ER 1025 . . .  131, 138 R v Wittwer 2008 SCC 33, [2008] 2 SCR
235 . . .  110
R v Turner [2013] EWCA Crim 64 . . .  182
R v Wood [1994] Crim LR 222 . . .  110, 113
R v Twist [2011] EWCA Crim 1143, [2011] 3 All
ER 1055 . . .  287 R v Woodhead [2011] EWCA Crim 472 . . .  270
R v Twitchell [2000] 1 Cr App R 373 . . .  87 R v Woollin [1999] AC 82 . . .  415
R v Ukpabio [2007] EWCA Crim 2108, [2008] 1 R v Wright (1989) 90 Cr App R 325 . . .  89
WLR 728 . . .  404 R v Wyatt [1990] Crim LR 343 . . .  81
R v Uljee [1982] 1 NZLR 561 . . .  244 R v X (Childhood Amnesia) [2005] EWCA Crim
R v Veneroso [2002] Crim LR 306 . . .  185 1828, [2006] 1 Cr App R 10 . . .  322
R v Verelst (1813) 3 Camp 432, 170 ER R v Y [2008] EWCA Crim 10, [2008] 1 WLR
1435 . . .  418 1683 . . .  300–302
R v Viola (1982) 75 Cr App R 125 . . .  14 R v Yap ChuanChing (1976) 63 Cr App R 7 . . .  49
R v Virgo (1978) 67 Cr App R 323 . . .  75 R v Yalman [1998] 2 Cr App R 269 . . .  5
R v Voisin [1918] 1 KB 531 . . .  115 R v Yaxley-Lennon [2005] EWCA Crim 2866,
[2006] 1 WLR 1885 . . .  278
R v Vu 2013 SCC 60, [2013] 3 SCR 657 . . .  187
R v Youvarajah 2013 SCC 41, [2013] 2 SCR
R v Vye [1993] 1 WLR 471 . . .  250–52
720 . . .  306
R v W [2006] EWCA Crim 686, [2007] 1 WLR
339 . . .  282 R v Yusuf [2003] EWCA Crim 1488, [2003] 2 Cr
App R 32 . . .  358
R v Wahab [2002] EWCA Crim 1570, [2003] 1 Cr
App R 15 . . .  99 R v Z [2009] EWCA Crim 20, [2009] 3 All ER
1015 . . .  300, 301, 304
R v Wainwright (1875) 13 Cox CC 171 . . .  297
R v Zarrabi (1985) The Times, 23 February . . .  44
R v Wait [1998] Crim LR 68 . . .  157, 165
Radford v Kent County Council (1998) 162 JP
R v Walker [1996] Crim LR 742 . . .  370, 371 697 . . .  363
R v Walker [1998] Crim LR 211 . . .  99, 323 Ramanauskas v Lithuania (2008) 51 EHRR
R v Wallace [2007] EWCA Crim 1760, [2008] 1 11 . . .  193, 194
WLR 572 . . .  273
Ramirez Sanchez v France (2006) 45
R v Walsh (1989) 91 Cr App R 161 . . .  102, EHRR 49 . . .  98
103, 173
Ratten v R [1972] AC 378 . . .  296
R v Walters (1979) 69 Cr App R 115 . . .  299
Rawson v Haigh (1824) 2 Bing 99, 130 ER
R v Ward [1993] 2 All ER 577 . . .  314, 323, 342 242 . . .  296
R v Wardell [1997] Crim LR 450 . . .  424 Read v Bishop of Lincoln [1892] AC 644 . . .  413
R v Warickshall (1783) 1 Leach 263, 168 ER Reed Executive plc v Reed Business Information
234 . . .  114–16 Ltd [2004] EWCA Civ 887, [2004] 1 WLR
R v Webber [2004] UKHL 1, [2004] 1 WLR 3026 . . .  224
404 . . .  125, 128, 131, 132 Revenue and Customs Commissioners v
R v Webster [2010] EWCA Crim 2819, [2011] 1 Khawaja [2008] EWHC 1687 (Ch), [2009] 1
Cr App R 16 . . .  38 WLR 398 . . .  55
R v Weightman (1990) 92 Cr App R 291 . . .  322 Ricketts v R [1998] 1 WLR 1016 . . .  155
R v Weir [2005] EWCA Crim 2866, [2006] 1 Ridehalgh v DPP [2005] EWHC 1100 (Admin),
WLR 1885 . . .  255, 256, 264, 268, 278 [2005] RTR 26 . . .  105
R v Westwell [1976] 2 All ER 812 . . .  76 Rieg v Austria (Application No 63207/00) 24
R v White [1998] 2 SCR 72 . . .  6, 148 March 2005 . . .  150
Table of C ases xxxi

Rogers v Hoyle [2014] EWCA Civ 257, [2014] 3 Sheldrake v DPP [2004] UKHL 43, [2004] 3
WLR 148 . . .  314 WLR 976 . . .  35–37
RPS v R [2000] HCA 3 . . .  359 Sherman v US 356 US 369 (1958) . . .  194
Rush & Tompkins Ltd v Greater London Smith v Jones [1999] 1 SCR 455 . . .  241
Council [1989] AC 1280 . . .  223 Smith v R [2008] UKPC 34 . . .  252
Smith v US 133 S Ct 714 (2013) . . .  46
S-B (Children), Re [2009] UKSC 17, [2010] 1 Sodeman v R [1936] 2 All ER 1138 . . .  50
AC 678 . . .  51
Solicitor, A, Re [1993] QB 69 . . .  54
SC v UK (2004) 40 EHRR 10 . . .  402
Sorrells v US 287 US 435 (1932) . . .  194
Saadi v Italy (2008) 49 EHRR 30 . . .  98
Southwark London Borough Council v Kofi-Adu
Sable Offshore Energy Inc v Ameron [2006] EWCA Civ 281, [2006] HLR 33 . . .  68
International Corp 2013 SCC 37, [2013] 2 SCR
623 . . .  223 Springsteen v Masquerade Music Ltd [2001]
EMLR 25 . . .  9
Saddleworth Urban District Council
v Aggregate and Sand Ltd (1970) 69 Stroude v Beazer Homes Ltd [2005] EWCA
LGR 103 . . .  47 Civ 265 . . .  12
Sak v CPS [2007] EWHC 2886 (Admin), (2007) Stupple v Royal Insurance Co Ltd [1971] 1 QB
172 JP 89 . . .  300, 303 50 . . .  421, 422
Salabiaku v France (1988) 13 EHRR 379 . . .  32 Svenska v Sun Alliance [1995] 2 Lloyd’s
Rep 84 . . .  232
Sansom v Metcalfe Hambleton & Co [1998]
PNLR 542 . . .  331 Swidler & Berlin v US 524 US 399 (1998) . . .  227
Saunders v Punch Ltd (t/a Liberty Publishing)
[1998] 1 All ER 234 . . .  219, 244 T v DPP [2007] EWHC 1793 (Admin), (2007)
Saunders v United Kingdom (1996) 23 EHRR 171 JP 605 . . .  132
313 . . .  145, 146, 149–51 T v UK (1999) 30 EHRR 121 . . .  401
Savage v Chief Constable of the Hampshire Taylor, Re, (Deceased) [1961] 1 WLR 9 . . .  416
Constabulary [1997] 2 All ER 631 . . .  210 Taylor v Anderton (Police Complaints Authority
Savings and Investment Bank Ltd v Fincken Intervening) [1995] 1 WLR 447 . . .  206
[2003] EWCA Civ 1630, [2004] 1 WLR Taylor v Chief Constable of Cheshire [1986] 1
667 . . .  225 WLR 1479 . . .  168
Schellenberg v Tunnel Holdings Pty Ltd [2000] Taylor v Taylor [1967] P 25 . . .  416
HCA 18 . . .  420 Taylor v Taylor [1970] 1 WLR 1148 . . .  422
Schenk v Switzerland (1988) 13 EHRR 242 . . .  27 Teeluck v The State [2005] UKPC 14, [2005] 1
Schering Corporation v Cipla Ltd [2004] EWHC WLR 2421 . . .  250
2587 (Ch), [2005] FSR 25 . . .  223, 224 Teixeira de Castro v Portugal (1998) 28 EHRR
Schneiderman v US 320 US 118 (1943) . . .  55 101 . . .  193, 194, 201
Science Research Council v Nassé [1980] AC Telfner v Austria (2001) 34 EHRR 7 . . .  32
1028 . . .  216 Teper v R [1952] AC 480 . . .  5, 280
Scott v London and St Katherine Docks Co Thomas v Metropolitan Police Commissioner
(1865) 3 H & C 596, 159 ER 665 . . .  418 [1997] 1 All ER 747 . . .  2, 86, 89, 246
Scott v R [1989] 1 AC 1242 . . .  157 Thompson v R [1998] 2 WLR 927 . . .  101, 120
Secretary of State for Trade and Industry v Baker Thomson v Kvaerner Govan Ltd [2003]
[1998] 2 WLR 667 . . .  233 UKHL 45 . . .  418
Secretary of State for Trade and Industry v Thongjai v R [1997] 3 WLR 667 . . .  94
Bairstow [2003] EWCA Civ 321, [2003] 3 Three Rivers District Council v Governor
WLR 841 . . .  423 and Company of the Bank of England (No
Selmouni v France (1999) 29 EHRR 403 . . .  98 5) [2003] EWCA Civ 474, [2003] 3 WLR
Senat v Senat [1965] P 172 . . .  75 667 . . .  228, 232, 242
Serious Organised Crime Agency v Gale [2011] Three Rivers District Council v Governor
UKSC 49, [2011] 1 WLR 2760 . . .  52 and Company of the Bank of England
Shand v R [1996] 1 WLR 67 . . .  156, 159 (No 6) [2004] UKHL 43, [2004] 3 WLR
Shannon v UK (2005) 42 EHRR 31 . . .  150 1274 . . .  226–28, 230, 231, 241, 245
Shannon v UK (Admissibility) (Application No Tickle v Tickle [1968] 1 WLR 937 . . .  298
67537/01) 6 April 2004 . . .  197 Timothy v The State [2000] 1 WLR 485 . . .  114
xxxii
Table of C ases

Tingle Jacobs & Co v Kennedy [1964] 1 WLR Ward v James [1966] 1 QB 273 . . .  14
638 . . .  417 Warren v Attorney-General for Jersey [2011]
Toth v Jarman [2006] EWCA Civ 1028, [2006] UKPC 10, [2011] 3 WLR 464 . . .  174
CP Rep 44 . . .  344 Warren v Warren [1996] 4 All ER 664 . . .  367
Toohey v Metropolitan Police Commissioner Watson v DPP [2003] EWHC 1466 (Admin),
[1965] AC 595 . . .  88, 89, 320 (2003) 168 JP 116 . . .  107
Waugh v British Railways Board [1980] AC
Unilever plc v Procter & Gamble Co [2000] 1 521 . . .  233
WLR 2436 . . .  224, 225 Webster v James Chapman & Co (A Firm) [1989]
US v Calandra 414 US 338 (1974) . . .  186 3 All ER 939 . . .  243
US v Dickerson 530 US 428 (2000) . . .  122 Weh v Austria (2004) 40 EHRR 37 . . .  150
US v Havens 446 US 620 (1980) . . .  186 Weissensteiner v R (1993) 178 CLR 217 . . .  359
US v Janis 428 US 433 (1976) . . .  186 Wellington v DPP [2007] EWHC 1061 (Admin),
US v Leon 468 US 897 (1984) . . .  186 (2007) 171 JP 497 . . .  291
US v Long 905 F 2d 1572 (DC Cir 1990) . . .  287 Westinghouse Uranium Contract, Re [1978] AC
US v Russell 411 US 423 (1973) . . .  194 547 . . .  222
US v Telfaire 469 F 2d 552 (1972) . . .  159, 160 Wetherall v Harrison [1976] QB 773 . . .  411, 412
USA v Philip Morris Inc [2003] EWHC 3028 Wharf Properties Ltd v Eric Cumine Associates
(Comm) . . .  229, 232 (1991) 29 Con LR 84 . . .  82
USA v Philip Morris Inc [2004] EWCA Civ 330, Wheeler v Le Marchant (1881) 17 Ch D
[2004] 1 CLC 811 . . .  232 675 . . .  232
Widdowson v Newgate Meat Corporation [1998]
Vanyan v Russia (Application No 53203/99) 15 PIQR P138 . . .  418, 419
December 2005 . . .  194 Williams v DPP [1993] 3 All ER 365 . . .  195
Västberga Taxi Aktiebolag v Sweden Williams v Illinois 132 S Ct 2221 (2012) . . .  311
(Application No 36985/97) 23 July 2002 . . .  32 Winship, Re 397 US 358 (1970) . . .  47
Velevski v R [2002] HCA 4 . . .  337 Wisniewski v Central Manchester Health
Ventouris v Mountain [1991] 1 WLR 607 . . .  228 Authority [1998] PIQR P324 . . .  7
Viscount De L’Isle v Times Newspapers [1987] 3 Witham v Holloway (1995) 69 ALJR 847 . . .  53
All ER 499 . . .  14 Wong Kam-Ming v R [1980] AC 247 . . .  120
Von Starck v R [2000] 1 WLR 1270 . . .  113 Woodby v INS 385 US 276 (1966) . . .  55
Woolley v North London Railway Co (1869) LR
W (Children) (Family Proceedings: Evidence), 4 CP 602 . . .  233
Re [2010] UKSC 12, [2010] 1 WLR 701 . . .  358 Woolmington v DPP [1935] AC 462 . . .  30, 46
W (Minors) (Sexual Abuse: Standard of Proof), Wright v Wright (1971) The Times, 15
Re [1994] 1 FLR 419 . . .  52 February . . .  422
Walder v US 347 US 62 (1954) . . .  186
Wallace v R [1997] 1 Cr App R 396 . . .  12 X Ltd v Morgan-Grampian (Publishers) Ltd
Wallace Smith Trust Co v Deloitte [1996] 4 All [1991] 1 AC 1 . . .  217
ER 403 . . .  205, 216
Walters v R [1969] 2 AC 26 . . .  48, 49 Y v DPP [1991] Crim LR 917 . . .  110
Walton v R (1989) 166 CLR 282 . . .  298 Young v Rank [1950] 2 KB 510 . . .  70
Table of Statutes

United Kingdom Companies Act 1985 . . .  145

s 432(2) . . .  149
Administration of Justice Act 1920 Contempt of Court Act 1981 . . .  20, 21
s 15 . . .  10 s 8 . . .  21
Administration of Justice Act 1985 s 8(1), (2) . . .  20
s 33 . . .  229 s 10 . . .  216–18, 220, 244
Anti-Social Behaviour Act 2003 Copyright, Designs and Patents Act 1988
s 2 . . .  282, 283 s 280 . . .  229
Asylum and Immigration (Treatment of s 280(1), (2) . . .  229
Claimants, etc) Act 2004
Coroners and Justice Act 2009 . . .  319, 385,
s 4 . . .  382 405, 407
Bankers’ Books Evidence Act 1879 Part 3 . . .  405
s 6 . . .  367 s 86(1), (2) . . .  405
Child Support Act 1991 . . .  285 s 88(3)–(6) . . .  406
Children Act 1989 . . .  241 s 89(1)(b) . . .  406
s 1(1) . . .  242 s 89(2) . . .  406
Part IV . . .  241, 242 s 90(2) . . .  406
s 31(2) . . .  51, 52 Counter-terrorism Act 2008
s 96 . . .  358 s 22 . . .  128
s 96(2)(a), (b) . . .  284, 358 Crime and Disorder Act 1998 . . .  55, 282
s 105(1) . . .  358 s 1 . . .  55
Children and Young Persons Act 1933 s 1(1)(a) . . .  55
s 50 . . .  414 s 1(10) . . .  41
Civil Evidence Act 1968 Crime (International Co-operation) Act 2003
s 11 . . .  421, 423, 428 s 7 . . .  290
s 12 . . .  423 Criminal Attempts Act 1981
s 13 . . .  421, 423 s 2(2)(g) . . .  369
s 13(1) . . .  422 Criminal Evidence Act 1898 . . .  358, 359
s 14(1) . . .  222 s 1 . . .  358, 364
Civil Evidence Act 1972 s 1(1) . . .  359
s 3 . . .  341 s 1(1)(f)(ii) . . .  269
s 3(1), (3) . . .  341 s 1(2) . . .  222
Civil Evidence Act 1995 . . .  23, 74, 75, 79, 80, 85, s 1(3)(ii) . . .  269
280, 282, 284, 311 s 1(4) . . .  359
s 2(1) . . .  283 Criminal Evidence (Witness Anonymity) Act
s 2(3), (4) . . .  283 2008 . . .  405
ss 3, 4 . . .  283 Criminal Justice Act 1925
s 5(1) . . .  283 s 41 . . .  181
s 5(2) . . .  284 Criminal Justice Act 1967 . . .  62
s 6(1) . . .  80 s 8 . . .  415
s 6(2) . . .  79 s 9 . . .  288
s 7 . . .  284 s 10 . . .  409
Civil Partnership Act 2004 Criminal Justice Act 1988
s 84(5) . . .  284, 293 s 24 . . .  290
xxxiv
Table of S tatutes

s 27 . . .  9 s 105(6), (7) . . .  267

s 30 . . .  347, 348 s 106(1)(a)–(c) . . .  269
s 32 . . .  378 s 106(2)(a), (b) . . .  269
Sch 13, para 6 . . .  290 s 106(3) . . .  269
Criminal Justice Act 2003 . . .  15, 23, 28, s 107 . . .  274, 275
60, 91, 119, 222, 252–58, 263, 264, 274, s 108(2) . . .  257
277, 279, 280, 286–88, 305, 311, 340,
s 109(1), (2) . . .  274
381, 401
s 112(1) . . .  254
Part 2 . . .  264, 306
s 112(2) . . .  272
s 51 . . .  378
s 114 . . .  300
s 51(1) . . .  378
s 114(1) . . .  286
s 51(4)(a) . . .  378
s 114(1)(a)–(c) . . .  288
s 51(6), (7) . . .  378
s 114(1)(d) . . .  79, 288, 289, 299–304
s 52(2), (3) . . .  378
s 114(2) . . .  299–301, 304, 305
s 54(2) . . .  378
s 114(2)(e) . . .  301, 302
s 56(2), (3) . . .  378
s 114(2)(g) . . .  302
Part 11, Chapter 1 (ss 98–113) . . .  257, 266
s 115(2), (3) . . .  286
s 98 . . .  254, 256
s 116 . . .  288, 290, 300, 306, 307
s 99(1) . . .  253
s 116(1) . . .  288
s 100 . . .  86, 90, 255, 277–79
s 100(1) . . .  276 s 116(2) . . .  288, 289, 291
s 100(1)(b) . . .  270, 277 s 116(2)(d) . . .  289
s 100(2)–(4) . . .  277 s 116(2)(e) . . .  289, 290
s 101 . . .  86, 257, 273 s 116(3)–(5) . . .  289
s 101(1) . . .  257 s 117 . . .  290, 291, 304, 306, 311
s 101(1)(a) . . .  257 s 117(2)(b), (c) . . .  291
s 101(1)(b) . . .  257, 278 s 118 . . .  293, 294, 306
s 101(1)(c) . . .  257, 258, 274 s 118(1) . . .  293–95, 340
s 101(1)(d) . . .  255–57, 260, 261, 263, 264, 268, s 119 . . .  74, 85, 292, 304
272, 274 s 119(1) . . .  74, 292
s 101(1)(e) . . .  255, 257, 266, 270,274 s 120 . . .  77, 78, 292, 304
s 101(1)(f) . . .  248, 255, 257, 267, 268, 274 s 120(2) . . .  77, 292
s 101(1)(g) . . .  255, 257, 269, 270, 274 s 120(3) . . .  75, 77, 292
s 101(3) . . .  261, 264, 270–72 s 120(4)(b) . . .  77, 78,292
s 101(4) . . .  261, 270 s 120(5), (6) . . .  77, 292
s 102 . . .  258 s 120(7)(c) . . .  78, 292
s 103 . . .  264 s 120(7)(e), (f) . . .  78, 292
s 103(1)(a) . . .  260, 262, 272 s 121(1) . . .  304
s 103(1)(b) . . .  261, 262, 270 s 121(1)(c) . . .  304, 305
s 103(2) . . .  260 s 124(2)(c) . . .  292
s 103(2)(a), (b) . . .  260, 266 s 125(1) . . .  305
s 103(3) . . .  260, 261 s 126(1)(b) . . .  305
s 103(4)(a), (b) . . .  260 s 127 . . .  340, 341
s 103(5) . . .  260 s 127(1)(a), (b) . . .  340
s 104(1) . . .  266 s 127(1)(c) . . .  341
s 104(2)(a), (b) . . .  266 s 127(1)(d) . . .  341
s 105(1)(a), (b) . . .  267 s 127(2) . . .  340
s 105(2) . . .  268 s 127(3)–(5) . . .  341
s 105(3) . . .  267 s 127(6) . . .  340
s 105(4), (5) . . .  268 s 133 . . .  9
Table of S tatutes xxxv

s 139 . . .  73, 75 s 11(5)(a), (b) . . .  63
Criminal Justice and Public Order Act s 11(10) . . .  63
1994 . . .  23, 125, 127, 140, 359, 407 ss 39–41 . . .  11
s 32(1) . . .  369–71 Criminal Procedure (Insanity) Act 1964
s 32(3) . . .  370 s 4 . . .  31
s 34 . . .  126, 128–31, 133–35, 137–40, 142–45, s 4(6) . . .  317
152, 237, 359 s 4A . . .  286
s 34(1) . . .  128, 132, 142 s 6 . . .  31
s 34(1)(a) . . .  128, 130, 131 Criminal Procedure (Insanity and Unfitness to
s 34(1)(b) . . .  145 Plead) Act 1991
s 34(2) . . .  128 s 1(1) . . .  317
s 34(2)(c) . . .  132
s 34(2)(d) . . .  138 Documentary Evidence Act 1868
s 34(2A) . . .  128 s 2 . . .  284
s 34(3), (4) . . .  129 Documentary Evidence Act 1882
s 34(5) . . .  127 s 2 . . .  284
s 35 . . .  130, 359, 363 Domestic Violence, Crime and Victims
s 35(1)(b) . . .  359–61 Act 2004
s 35(2) . . .  363 s 6(4) . . .  69
s 35(3) . . .  359, 361
s 35(4) . . .  359 Environmental Protection Act 1990 . . .  148
s 35(5) . . .  360 s 33(1)(a) . . .  42
s 36 . . .  126, 141–43, 152, 359 s 71(2) . . .  149
s 36(1) . . .  141 s 80(4) . . .  40, 41
s 36(1)(b), (c) . . .  142 s 80(7) . . .  40
s 36(2)–(4A) . . .  141 s 80(9) . . .  40
s 36(5) . . .  141, 142 Evidence (Colonial Statutes) Act 1907
s 37 . . .  126, 143, 152, 359 s 1 . . .  285
s 37(1)–(3) . . .  143 Evidence (Foreign, Dominion and Colonial
s 37(3A), (4) . . .  143 Documents) Act 1933
s 38(3) . . .  360 s 1 . . .  285
s 38(6) . . .  144
Criminal Procedure Act 1865 Factories Act 1961
s 3 . . .  73, 74 s 29(1) . . .  39
ss 4–6 . . .  84, 85 Family Law Reform Act 1987
Criminal Procedure and Investigations Act s 26 . . .  416
1996 . . .  11, 58, 60–62, 71, 126 Finance Act 2008
Part I (ss 1–21) . . .  126 Sch 36, para 1 . . .  234
s 3 . . .  61, 62 Firearms Act 1968 . . .  37
s 3(1)(a) . . .  61 Firearms Act 1982 . . .  37
s 3(6) . . .  61, 204 s 1 . . .  27
s 5(1)(b) . . .  62 s 1(5) . . .  27
s 5(5) . . .  62 Forestry Act 1967
s 6A . . .  62 s 9 . . .  43
s 6A(2) . . .  63 s 9(1)–(4) . . .  42
s 6A(2)(a) . . .  62 s 9(3)(b) . . .  42
s 6C . . .  63 s 9(5)(a) . . .  42
s 7A(2) . . .  61 s 9(5)(c) . . .  42
s 7A(8) . . .  204 s 17 . . .  43
s 8(5) . . .  204 s 17(1) . . .  42
xxxvi
Table of S tatutes

Freedom of Information Act 2000 . . .  215 Oaths Act 1978

s 1 . . .  215 s 1 . . .  357
s 2(2)(b) . . .  216 s 4(2) . . .  357
s 5(1) . . .  357
Highways Act 1959 s 5(4) . . .  357
s 121(1) . . .  41 Oaths and Evidence (Overseas Authorities and
s 140(1) . . .  41 Countries) Act 1963
Highways Act 1980 s 5 . . .  285
s 137(1) . . .  41 s 14(3) . . .  285
s 161(1) . . .  41 Obscene Publications Act 1959
Human Rights Act 1998 . . .  23, 26, 27, 32, s 4 . . .  317
33, 36, 56, 162, 172, 177, 181, 189, 194, s 4(1) . . .  317
199, 365 s 4(1A) . . .  317
s 2(1)(a) . . .  26 s 4(2) . . .  317
s 3 . . .  32, 34, 36, 396, 397 Offences Against the Person Act 1861
s 3(1) . . .  26 s 47 . . .  318
s 3(2)(b) . . .  26 s 57 . . .  417
s 4 . . .  32 Official Secrets Act 1911
s 4(2) . . .  26 s 1(2) . . .  253
s 4(5) . . .  26
s 6(1), (2) . . .  26 Perjury Act 1911 . . .  369
s 6(3)(a) . . .  26 s 1 . . .  357
s 13 . . .  18, 369
Immigration and Asylum Act 1999 Police Act 1997 . . .  176
s 31(1) . . .  43, 47
Part III . . .  176
Indictments Act 1915
Police and Criminal Evidence Act 1984 . . .  66,
s 5(3) . . .  275, 276 98, 102–4, 108, 110, 145, 172, 189, 303
Insolvency Act 1986 . . .  149 Pt VI . . .  189
s 354(3)(a) . . .  149 s 10 . . .  227
Interpretation Act 1978 s 10(1) . . .  227
s 3 . . .  414 s 10(1)(a)–(c) . . .  228
s 22(1) . . .  414 s 10(2) . . .  227, 238
Sch 2, para 2 . . .  414 s 17(1)(e) . . .  186
s 58 . . .  102, 103, 107
Law of Property Act 1925 s 58(1) . . .  102
s 184 . . .  417 s 58(4) . . .  102
Local Government (Miscellaneous Provisions) s 62(10) . . .  7
Act 1982
s 63(3) . . .  176
s 51(1) . . .  285
s 65 . . .  176
s 74 . . .  423, 427, 428
Magistrates’ Courts Act 1952
s 74(1) . . .  423–25
s 81 . . .  38
s 74(2) . . .  424
Magistrates’ Courts Act 1980
s 74(3) . . .  425
ss 8A–8D . . .  11
s 75(1) . . .  427
s 101 . . .  38, 42
s 75(4) . . .  427
Mental Health Act 1983 . . .  402
s 76 . . .  95, 100, 101, 110, 112, 121, 124,
Misuse of Drugs Act 1971 . . .  40 166, 186
s 5 . . .  40 s 76(1) . . .  95
s 5(3) . . .  33 s 76(2) . . .  96, 99, 100, 109, 110, 114–16,
s 28 . . .  33, 34 120, 121
Table of S tatutes xxxvii

s 76(2)(a) . . .  96, 109 para 3.12 . . .  160, 163

s 76(2)(b) . . .  98–100, 109, 110 para 3.14 . . .  163
s 76(3) . . .  96, 97, 120 para 3.16 . . .  163
s 76(4)(a) . . .  114 para 3.21 . . .  163
s 76(4)(b) . . .  115 para 3.23 . . .  163
s 76(5) . . .  114, 116 annexes A–D . . .  163
s 76(6) . . .  114 annex E . . .  162
s 76(8) . . .  96, 97 Code E . . .  106, 122
s 76A . . .  119, 124, 301 para 1.5A . . .  106
s 77 . . .  111, 112, 121, 124 paras 2.1, 2.2 . . .  106
s 77(1) . . .  18, 111 para 3.1 . . .  106
s 77(2), (3) . . .  111 para 3.3 . . .  106
s 78 . . .  95, 98, 101, 105, 109, 145, 161, para 3.3A . . .  106
164, 165, 171, 177, 178, 180–82, 188, para 4.6 . . .  106
196, 203, 261, 268, 298, 374, 424–27 paras 4.18, 4.19 . . .  106
s 78(1) . . .  13, 98, 100–3, 106–8, 110, para 5.1 . . .  106
112, 116, 121, 144, 154, 164, 171–73, Code F . . .  106
176–78, 180, 185, 186, 188, 189,
Police and Justice Act 2006 . . .  402
195–97, 202
Presumption of Death Act 2013 . . .  417
s 79 . . .  66
s 1 . . .  417
s 80 . . .  303, 364, 407
s 3(1)(a) . . .  417
s 80(2) . . .  366
s 5 . . .  417
s 80(2A)(a) . . .  366
Prevention of Terrorism (Temporary Provisions)
s 80(2A)(b) . . .  365
Act 1989
s 80(3) . . .  365
s 16A . . .  32
s 80(4) . . .  365, 366 Proceeds of Crime Act 2002
s 80(5), (5A) . . .  364 s 241(3) . . .  52
s 80(7) . . .  366 s 329(1), (2) . . .  43, 47
s 80(8) . . .  365 Protection from Harassment Act 1997
s 80A . . .  365 s 5A . . .  53
s 82(1) . . .  95 Protection of Children Act 1978 . . .  366
Codes of Practice . . .  102, 104, 106, 108, 119, s 1(1)(c) . . .  324
145, 176
Public Health Act 1936
Code B
s 95(1) . . .  47
para 2.3 . . .  180
Code C . . .  99, 102, 104, 105, 107, 164, 196
Regulation of Investigatory Powers Act
para 6.6 . . .  102 2000 . . .  182, 199
para 10.1 . . .  104 Rehabilitation of Offenders Act 1974
para 10.5 . . .  129 s 4(1) . . .  85, 86
para 11.1 . . .  105, 106 s 7(2)(a) . . .  86
para 11.1A . . .  106 s 7(3) . . .  85, 86
para 11.7(a)–(c) . . .  106 Road Traffic Act 1988
paras 11.8–11.10 . . .  106 s 5(1)(b) . . .  35
para 11.11 . . .  106, 107 s 5(2) . . .  35
para 11.15 . . .  105 s 6 . . .  174
paras 11.18–11.20 . . .  105 s 47 . . .  41
Code D . . .  154, 161, 162, 164–66, 170, 181 s 47(1) . . .  41
paras 3.2, 3.3 . . .  162 s 143 . . .  41
para 3.4 . . .  163 s 172 . . .  146, 147
paras 3.5–3.10 . . .  163 s 172(2) . . .  146, 148
xxxviii
Table of S tatutes

s 172(2)(a) . . .  146, 150 s 18(1) . . .  380, 384, 385

s 172(2)(b) . . .  146 s 19 . . .  289, 379
s 172(3) . . .  146, 150 s 19(2), (3) . . .  380
Road Traffic Offenders Act 1988 s 21(3)(a), (b) . . .  385
s 15(2) . . .  415 s 21(4)(b) . . .  385
Road Traffic Regulation Act 1984 s 21(4)(ba) . . .  385
s 89 . . .  18 s 21(4)(c) . . .  385
s 89(1), (2) . . .  368 s 21(4A) . . .  385
s 21(4B)(a), (b) . . .  385
Sexual Offences Act 1967 s 21(4C) . . .  385
s 1(1)(a) . . .  46 s 21(9) . . .  385
s 1(6) . . .  46 s 22 . . .  385
Sexual Offences Act 2003 . . .  395 s 22A(7), (9) . . .  383
Part 1 . . .  366 s 23 . . .  381
Sexual Offences (Amendment) Act 1976 s 23(1), (2) . . .  381
s 2 . . .  393 s 24(1)–(3) . . .  381
s 2(2) . . .  398 s 24(8) . . .  381
Special Immigration Appeals Commission s 25 . . .  381, 382
Act 1997 s 26 . . .  382
s 6 . . .  213 s 27(1) . . .  382
s 27(2) . . .  382, 383
Taxes Management Act 1970
s 27(3) . . .  382
s 20(1) . . .  234
s 27(4)(a)(i), (ii) . . .  382
Terrorism Act 2000
s 27(4)(b) . . .  382
s 11(1) . . .  35
s 27(5)(b) . . .  383
s 11(2) . . .  35, 36
s 27(7) . . .  383
s 11(2)(a), (b) . . .  36
s 28 . . .  383, 384
s 117 . . .  36
s 28(1)(a), (b) . . .  383
s 118(2) . . .  36
s 29 . . .  384
Theft Act 1968
s 30 . . .  385
s 27(3) . . .  253, 254
s 32 . . .  386
s 27(3)(b) . . .  253
s 33A . . .  402–4
Trade Marks Act 1994
s 33A(2)(b) . . .  402
s 92 . . .  34
s 33A(3) . . .  402
s 92(1) . . .  34
s 33A(4)(a), (b) . . .  402
s 92(5) . . .  34
s 33A(5)(a)–(c) . . .  402
Trial of Lunatics Act 1883
s 34 . . .  391, 392
s 2 . . .  317
s 35 . . .  391, 392, 407
s 35(3)(a)–(d) . . .  391
Wireless Telegraphy Act 1949 . . .  53
s 36 . . .  392
Youth Justice and Criminal Evidence Act s 36(4)(a) . . .  392
1999 . . .  23, 146, 356, 379, 380, 387, 389, s 38(3) . . .  392
401, 407 s 38(4) . . .  269, 392
s 16(1)(a), (b) . . .  379 s 39(1) . . .  392
s 16(2)(a)(i), (ii) . . .  379 s 41 . . .  81, 390, 393–98, 400, 401
s 16(2)(b) . . .  379 s 41(1) . . .  394
s 16(5) . . .  380 s 41(2)(b) . . .  394
s 17(1), (2) . . .  379 s 41(3)(a) . . .  394
s 17(4)–(6) . . .  380 s 41(3)(b) . . .  395, 396, 399
Table of S tatutes xxxix

s 41(3)(c) . . .  395, 396 Evidence Act 2008 (Victoria) . . .  25, 72, 233,

s 41(4) . . .  395, 398 367, 410
s 41(5), (6) . . . 395 s 18(6), (7) . . .  367
s 42(1)(c) . . .  394, 397 s 38(1)(a) . . .  72
s 53(1) . . .  356 s 53 . . .  8
s 53(3)–(5) . . .  356 s 119 . . .  233
s 54 . . .  356 s 137 . . .  3
s 54(1)(a), (b) . . .  356 Uniform Evidence Acts . . .  25, 72, 233, 367, 410
s 55(2)(a), (b) . . .  357
s 55(3)–(5) . . .  357 Canada
s 55(6), (7) . . .  358
s 56(1)(a), (b) . . .  358 Charter of Rights and Freedoms . . .  6, 31, 110,
s 56(2), (3) . . .  358 189, 393
s 57 . . .  358 s 1 . . .  31
s 58 . . .  134 s 7 . . .  240
s 59 . . .  146 s 11(d) . . .  31
Sch 3 . . .  146 s 24(2) . . .  171, 185, 187, 188
Criminal Code . . .  31

Australia
International
Evidence Act 2011 (Australian Capital
Territory) . . .  25, 72, 233, 367, 410 Rome Statute of the International Criminal
s 18(6), (7) . . .  367 Court . . .  187
s 38(1)(a) . . .  72 art 69(7) . . .  187
s 53 . . .  8 Rules of Procedure and Evidence of the
International Criminal Tribunals for
s 119 . . .  233 Rwanda and the Former Yugoslavia . . .  187
s 137 . . .  3 r 95 . . .  187
Evidence Act 1995 (New South Wales) . . .  25,
72, 233, 367, 410
s 18(6), (7) . . .  367 New Zealand
s 38(1)(a) . . .  72
Bill of Rights . . .  190
s 53 . . .  8
Evidence Act 2006 . . .  26, 166
s 119 . . .  233
s 30 . . .  190
s 137 . . .  3
s 45(2) . . .  166
Evidence (National Uniform Legislation) Act
2011 (Northern Territory) . . .  25, 72, 233,
367, 410 South Africa
s 18(6), (7) . . .  367
s 38(1)(a) . . .  72 Constitution
s 53 . . .  8 s 35(5) . . .  185
s 119 . . .  233 Bill of Rights . . .  185
s 137 . . .  3
Evidence Act 2001 (Tasmania) . . .  25, 72, 233, United States
367, 410
s 18(6), (7) . . .  367 Constitution . . .  310
s 38(1)(a) . . .  72 Fourth Amendment . . .  186, 187
s 53 . . .  8 Sixth Amendment . . .  310
s 119 . . .  233 Federal Rules of Evidence 1975
s 137 . . .  3 r 702 . . .  335, 337, 354
Table of Statutory Instruments
Children (Admissibility of Hearsay Evidence) Consumer Rationing (Consolidation) Order
Order 1993 (SI 1993/621) 1944 (SR & O 1944/800)
art 2 . . .  285 art 4 . . .  40
Civil Procedure Rules 1998 (SI Criminal Evidence (NI) Order 1988 (SI
1998/3132) . . .  58, 59, 65, 221, 316, 352, 354 1988/1987) (NI 20) . . .  140
Part 1 . . .  58 Criminal Justice Act 2003 (Categories of
r 1.1(1) . . .  58 Offences) Order 2004 (SI 2004/3346) . . .  260
r 1.2 . . .  248 Criminal Procedure Rules 2005 (SI
r 1.3 . . .  58 2005/384) . . .  24
r 1.4 . . .  248 Criminal Procedure Rules 2014 (SI
2014/1610) . . .  24, 212, 314, 315, 354, 384
r 14.1(1), (2) . . .  410
r 1.1 . . .  24
r 14.1A(1) . . .  410
rr 1.2, 1.3 . . .  25
r 31.2 . . .  59
r 22.3(2)(a) . . .  212
rr 31.6, 31.7 . . .  59
r 22.3(2)(b)(iii) . . .  212
r 31.7(1), (2) . . .  59
r 22.3(3)(b) . . .  212
r 31.8(1), (2) . . .  59
r 22.3(6)(b) . . .  212
r 31.11(1) . . .  59
Part 33 . . .  314
r 31.19(1) . . .  59, 212
r 33.2 . . .  343
r 31.19(6), (7) . . .  212
r 33.3(3)(a)(ii) . . .  352
r 31.20 . . .  243, 244
r 33.3(3)(b)–(d) . . .  352
r 31.21 . . .  59
r 33.3(4) . . .  352
r 31.22(1) . . .  59
r 33.4 . . .  347
r 32 . . .  14
r 33.6 . . .  345
r 32.1 . . .  13, 248
r 33.7 . . .  348
r 32.1(2) . . .  13
r 33.8(1), (2) . . .  348
r 32.2(1)(a) . . .  65
Crown Court (Criminal Procedure and
r 32.3 . . .  377 Investigations Act 1996) (Disclosure) Rules
r 32.4(1), (2) . . .  65 1997 (SI 1997/698) . . .  212
r 32.5(1)–(4) . . .  65 Fire Services (Discipline) Regulations 1948 (SI
rr 33.2–33.4 . . .  283 1948/545) . . .  54
Part 35 . . .  314, 343 General Medical Council (Fitness to Practise)
r 35.1 . . .  316 Rules 2004 (SI 2004/2608)
r 35.3 . . .  236, 343 r 34(12) . . .  54
r 35.4(1) . . .  316 Magistrates’ Courts (Criminal Procedure and
r 35.5(1) . . .  346 Investigations Act 1996) (Disclosure) Rules
1997 (SI 1997/703) . . .  212
r 35.7 . . .  348
Misuse of Drugs Regulations 1973 (SI
r 35.8(1), (2) . . .  348 1973/797) . . .  40
r 35.10 . . .  346 Proceeds of Crime (Northern Ireland) Order
r 35.10(3) . . .  236 1996 (SI 1996/1299) (NI 9) . . .  150
r 35.10(4) . . .  236, 237 Special Immigration Appeals Commission
r 35.11 . . .  352 (Procedure) Rules 2003 (SI 2003/1034)
r 35.12 . . .  344, 345 r 34 . . .  213
r 35.12(3) . . .  345 Sugar (Control) Order 1940 (SR & O 1940/1069)
r 35.13 . . .  352 art 2 . . .  39
Table of European Materials
European Convention on Human Rights Art 6(3)(a)–(c) . . .  27
1950 . . .  26, 27, 32, 33, 171, 177, 179, 181, Art 6(3)(d) . . .  27, 307–10, 386, 405
184, 189, 190, 201, 307, 365 Art 6(3)(e) . . .  27
Art 3 . . .  97, 98, 116, 183, 184, 190 Art 8 . . .  171, 177, 178, 180–82, 186, 190–92,
Art 6 . . .  27, 52, 95, 100, 116, 133, 136, 203, 364
140, 141, 145–50, 152, 162, 177, 179, Art 8(1) . . .  177, 179, 182
180, 182, 184, 197, 201, 203, 214,
219, 307, 386, 396, 397, 401, 402, Art 8(2) . . .  177, 178, 182
405, 424 Art 10 . . .  217–20
Art 6(1) . . .  27, 146, 148–51, 178–81, 194, Art 10(1) . . .  217
307, 309, 363, 402, 415 Art 10(2) . . .  217, 218
Art 6(2) . . .  27, 32, 33, 43, 363, 415 Art 15 . . .  98
1
Introduction

Evidence is the information with which the matters requiring proof in a trial are proved.
The study of evidence, therefore, is the study of the process by which such matters are
proved in court. In very broad terms, the law of evidence may be said to be concerned with
the following questions:
• What is the extent to which particular types of evidence may be considered in a
case? In a criminal trial, for example, the issue may arise as to whether evidence that
the person accused has previously been involved in other misconduct can be intro-
duced. If it can be introduced, precisely what use may the jury make of the evidence?
If it cannot be introduced, what is the justification for this restriction on the free
admissibility of evidence?
• Are there principles governing the manner in which evidence which has been admit-
ted is to be evaluated?
• By which party in a case must evidence be presented?
• What are the principles governing the course of evidence in a trial?
Questions such as these will form the basis of the discussions later in this chapter and in
subsequent chapters. The law of evidence may prove to be of crucial practical importance
in a case. It has been argued that
the outcome of cases, whether criminal or civil, is in practice more likely to be affected by
procedural rules than by any niceties of substantive law such as those that preoccupy text-
book writers. Further or alternatively, . . . parties are more likely to regard their treatment
at the hands of the law as unjust because of what they perceive to be defects of procedure
than because of what they perceive to be defects of substantive law.1
It is important in any study of the law of evidence that powers of critical analysis be
actively engaged at all times. If the claim that the English law of evidence is part of a
rational2 system of proof can be sustained, then all evidential principles must have clear
and coherent rationales that withstand close scrutiny. There must, to put it simply, be a
good reason for the existence of every evidential principle. As we shall see, to say that this
is not necessarily the case may well be an understatement.

1  J Lever, ‘Why Procedure Is More Important than Substantive Law’ (1999) 48 International and

Comparative Law Quarterly 285, 285.

2  See generally M Redmayne, ‘Rationality, Naturalism, and Evidence Law’ [2003] Michigan State Law

Review 849.
2
Introduc tion

It is necessary now to turn to an examination of a number of basic concepts and dis-

tinctions in the law of evidence. This examination will assist in illuminating the discus-
sions in the rest of the book.

1  Facts in Issue and Collateral Facts

All evidence in a case must be relevant to either a fact in issue or a collateral fact. A fact
in issue, or factum probandum, is a fact that must be proved by a party in a case in order
for that party to succeed in the action. It is, to put it another way, an essential fact. What
the facts in issue in a particular case are is dependent on the substantive law and not on
the law of evidence. In a murder case, for example, the prosecution must, in order to suc-
ceed, prove that (1) the defendant caused the victim’s death, (2) doing so with the neces-
sary mens rea (that is, with the intention of causing death or grievous bodily harm). Thus
(1) and (2) constitute the facts in issue in the case. There are three facts in issue in a tort
action for negligence: the claimant must, in order to succeed, prove (1) the existence of
a duty of care, (2) breach of that duty, and (3) the consequential loss. A fact that is not a
fact in issue but is relevant to a fact in issue is known as a relevant fact or factum probans.
A collateral fact is a fact of which proof may be permitted but which does not constitute
a fact in issue or a fact that is relevant to a fact in issue. The credibility of a witness, or
simply ‘credit’, is a classic collateral fact. The extent to which a witness is worthy of belief
may be an important, and indeed crucial, issue in a trial. Whether particular evidence
has relevance to credit is therefore a question that may arise for consideration. The Court
of Appeal has noted:
The assessment of credit is not exclusively a logical process. Juries invariably are directed
to use their ‘knowledge of human nature’ when deciding whether a witness is telling the
truth, and the law not only permits but requires them to form their subjective though
collective view, taking such account of demeanour, motive, consistency and other charac-
teristics of the person they have seen giving evidence as they think fit. In this broad sense,
certain matters can be described as ‘relevant to credit’, but this is something different from
relevance meaning logically probative of an issue.3

2  Relevance, Admissibility, and Weight

Evidence must be relevant before it can be used in court. If it is relevant and does not
infringe any exclusionary rule, it will be admissible.4 Admissible evidence can, however,
be excluded in the exercise of judicial discretion. Any admissible evidence that is not
excluded in the exercise of discretion will be admitted, and the weight to be attached to
the evidence is then a matter for the trier of fact.
Relevance5 is possibly the most basic concept in the law of evidence. ‘The question
whether evidence is relevant depends not on abstract legal theory but on the individual

3  Thomas v Comr of Police [1997] 1 All ER 747, 763.

4  ‘Evidence is admissible if it may be lawfully adduced at a trial’: DPP v Kilbourne [1973] AC 729, 756.
5  For a general discussion of relevance see Law Commission (Consultation Paper No 141), Criminal

Law—Evidence in Criminal Proceedings: Previous Misconduct of a Defendant—A Consultation Paper (1996)

[6.7]–[6.9]. For a New Zealand perspective see B Robertson, ‘Bain, Bayes and Basics: Relevance under the
Evidence Act 2006’ (2010) 24 New Zealand Universities Law Review 167.
Rele vance, Admissibilit y, and Weight 3

circumstances of each particular case.’6 An item of evidence is considered relevant if it ren-

ders the fact to be proved more probable than it would be without that evidence. Thus, an item
of evidence is relevant so long as it has probative value or probative force,7 however little.8 As
Lord Simon of Glaisdale explained in DPP v Kilbourne:
Evidence is relevant if it is logically probative or disprobative of some matter which requires
proof . . . It is sufficient to say, even at the risk of etymological tautology, that relevant (ie, logi-
cally probative or disprobative) evidence is evidence which makes the matter which requires
proof more or less probable.9
An alternative approach to relevance is that advocated by Wigmore.10 On this approach, a
distinction is made between logical relevance and legal relevance. Evidence is not prima facie
admissible unless it is legally relevant. An item of evidence which is relevant in the normal sense
of rendering a fact to be proved more probable than it would be without the evidence is logically
relevant, but it is not necessarily legally relevant. To be legally relevant, it may be necessary for
that item of evidence to possess some ‘plus value’ in the shape of additional probative value:
Logical relevance + ‘Plus value’ = Sufficient relevance/Legal relevance
It would seem that this concept of ‘plus value’ is simply a vehicle for facilitating consid-
eration of any disadvantages of admitting the evidence. Put another way, plus value is
the additional probative value required for the total probative value of the evidence to
outweigh such possible considerations as prejudice to the defendant, the introduction of
collateral issues, delay, confusion of the jury, and so on.11 On the orthodox approach to
relevance, however, such considerations would be taken into account in the exercise of
discretion, rather than in determining whether the evidence is ‘relevant’ in the first place.
The Wigmore approach has often been criticized for obscuring the precise basis on which
a decision on admissibility has been reached: the mere fact that an item of evidence is
legally irrelevant does not tell us whether it is legally irrelevant because it lacks probative
value completely, or because of considerations which do not relate to probative value.12

6
  R v Guney [1998] 2 Cr App R 242, 265.
7
  R v Harz [1967] AC 760, 785 per Thesiger J: ‘the word “relevant” is to all intents and purposes synony-
mous with the phrase “of probative value”’; R v Kearley [1992] 2 AC 228, 263 per Lord Oliver of Aylmerton: ‘a
fact to be relevant must be probative’. For Australian discussion see T Smith and S Odgers, ‘Determining
“Probative Value” for the Purposes of Section 137 in the Uniform Evidence Law’ (2010) 34 Criminal Law
Journal 292.
8  ‘It is enough if the item could reasonably show that a fact is slightly more probable than it would

appear without that evidence’: E W Cleary, McCormick on Evidence (3rd ed 1984) 542.

9  [1973] AC 729, 756.
10  J H Wigmore, Evidence in Trials at Common Law (Vol 1A) (rev by P Tillers, 1983) 969. Such an approach

is also taken by L H Hoffmann, ‘Similar Facts After Boardman’ (1975) 91 Law Quarterly Review 193, 204–6.
11  R O Lempert and S A  Saltzburg, A Modern Approach to Evidence:  Text, Problems, Transcripts and

Cases (2nd ed 1982) 153: ‘Now this concept of plus value is confusing; it is not clear what it would be. In fact
it is probably a less precise way of acknowledging, as modern courts do, that even relevant evidence may
be excluded if it seems likely to be prejudicial, misleading or unduly time-consuming. . . . The judge’s task
is to balance the probative value of and need for the evidence against the harm likely to result from admis-
sion.’ See also H L Trautman, ‘Logical or Legal Relevancy—A Conflict in Theory’ (1952) 5 Vanderbilt Law
Review 385; E W Cleary, McCormick on Evidence (3rd ed 1984) 548 (‘This notion of “plus value” is at best an
imprecise way to say that the probative value and the need for the evidence must outweigh the harm likely
to result from admission’); W Twining, Theories of Evidence: Bentham and Wigmore (1985) 154.
12  E W Cleary, McCormick on Evidence (3rd ed 1984) 548 n 45: ‘The phrase “legal relevance” is mislead-

ing inasmuch as it blurs the distinction between evidence that is excluded because it lacks all probative force
as to an issue that is of consequence to the outcome of the case and evidence that has probative worth but
is excluded on other grounds.’ Roberts forcefully states that ‘I remain recalcitrant in the view that “legal
4
Introduc tion

On the other hand, a court taking the orthodox approach which treats evidence with
some probative value, however little, as relevant, but subject to be excluded on a variety of
other grounds, would be more likely to articulate the precise basis on which a particular
item of evidence is to be excluded.13
Whenever a discussion of ‘relevance’ is encountered in the cases, therefore, the fol-
lowing question should be asked: in precisely what sense is the court using the term ‘rel-
evance’? For example, the notion, accepted by some, that there are ‘degrees of relevance’14
is probably premised on the acceptance of a distinction between logical relevance and
legal relevance.
‘“Weight” of evidence is the degree of probability (both intrinsically and inferentially)
which is attached to it by the tribunal of fact once it is established to be relevant and
admissible in law’.15 Thus where an item of evidence has been admitted in a criminal trial
with a jury, it is up to the jury to decide how much weight to place on the evidence. That
is, the final decision on how compelling the evidence is, and how far it goes in proving the
matter requiring proof, is within the province of the jury.
There may be circumstances, however, where relevant evidence ought not to be left
to the jury without an accompanying judicial warning. For example, evidence that the
defendant was found with a quantity of money in his possession would be relevant to his
guilt of the offence of possession of drugs with an intent to supply them. However,
where such evidence [is] admitted it [is] incumbent upon the judge to give a direction
to the jury as to the way in which they should approach the question of whether the
finding of the money is probative of the necessary intent . . . it is necessary . . . for the
judge to indicate that any explanation for the money which has been put forward by
way of an innocent explanation by the accused would have to be rejected by the jury
before they could regard the finding of the money as relevant to the offence. Again
the jury should be directed that if there was any possibility of the money being in the
accused’s possession for reasons other than drug dealing, then the evidence would not
be probative. If, on the other hand, the jury were to come to the conclusion that the
presence of the money indicated not merely past dealing, but an ongoing dealing in
drugs, then finding the money, together with the drugs in question, would be a matter

relevance” and its functional equivalents, such as “direct and immediate” relevance, are dangerous heresy.
The principal purpose of the concept, so far as I can see, is to permit judges to base decisions to exclude
proffered evidence on value choices concealed behind an opaque and conclusory judgment of “irrelevance,”
without the need to explain or justify exactly what they are doing. This is not only a question of increas-
ing transparency in legal decision-making, or of forced articulation improving the substantive quality of
forensic outcomes, though both these “process values” are certainly significant. Far worse, in some cases
judges actually seem to be making relevance work for value preferences which, were they to be explicitly
articulated, would fail to derive support from any (other) rule of evidence. This is especially worrying
where an expanded concept of relevance is exploited sub silentio to exclude defence evidence in criminal
proceedings where no (other) exclusionary rule bites; where, in other words, the evidence would have had
to be admitted if the traditional relevance standard had been correctly applied’: P Roberts, ‘Tyres with a
“Y”: An English Perspective on Kumho Tire and its Implications for the Admissibility of Expert Evidence’
(1999) 1(2) International Commentary on Evidence. See also M C Slough, ‘Relevancy Unraveled’ (1956) 5
Kansas Law Review 1.
13  See, however, the defence of the Wigmore approach in J H Wigmore, Evidence in Trials at Common

Law (Vol 1A) (rev by P Tillers, 1983) 973–4.

14  See, eg, R v Edwards [1991] 1 WLR 207, 219 (‘Relevance . . . is a matter of degree and has to be considered

not by rule of thumb but against the background of each individual case’); R v Randall [2003] UKHL 69,
[2004] 1 WLR 56 at [20] (‘The question of relevance is typically a matter of degree to be determined, for the
most part, by common sense and experience’).
15  DPP v Kilbourne [1973] AC 729, 756.
Direc t E vidence and Circums tantial E vidence 5

which the jury could take into account in considering whether the necessary intent
had been proved.16

3  Direct Evidence and Circumstantial Evidence

The testimony of a witness concerning matters personally perceived by that witness, which
if believed would be sufficient to prove a fact in issue without further evidence or the need
for inference, constitutes direct evidence. This is to be distinguished from circumstantial
evidence, which is evidence from which a fact in issue may be inferred. To put it another
way, circumstantial evidence is evidence of a relevant fact as opposed to evidence of a
fact in issue. While ‘it is no derogation of evidence to say that it is circumstantial’,17 such
evidence must be approached with caution:
Circumstantial evidence may sometimes be conclusive, but it must always be narrowly
examined, if only because evidence of this kind may be fabricated to cast suspicion
on another. Joseph commanded the steward of his house, ‘put my cup, the silver cup
in the sack’s mouth of the youngest,’ and when the cup was found there Benjamin’s
brethren too hastily assumed that he must have stolen it. It is also necessary before
drawing the inference of the accused’s guilt from circumstantial evidence to be sure
that there are no other co-existing circumstances which would weaken or destroy the
inference.18
The following is an eclectic list of some examples of circumstantial evidence:

3.1  Opportunity
Circumstantial evidence of opportunity to commit a crime may be provided, for example,
by evidence of the presence of the accused at the time of, and at the scene of, the crime.

3.2  Fingerprints and Bodily Samples

The fact that an object found at the scene of the crime bore the accused’s fingerprints con-
stitutes circumstantial evidence of the identity of the perpetrator,19 as does the fact that
samples taken from the accused’s body match those taken from the victim.

16  R v Grant [1996] 1 Cr App R 73, 78. See also R v Morris [1995] 2 Cr App R 69; R v Lovelock, The Times, 5

June 1997; R v Edwards [1998] Crim LR 207; R v Guney [1998] 2 Cr App R 242; R v Griffiths [1998] Crim LR
567; R v Malik [2000] 2 Cr App R 8; R v Patel [2003] EWCA Crim 3782. See generally M Redmayne, ‘Drugs,
Money and Relevance: R v Yalman and R v Guney’ (1999) 3 International Journal of Evidence and Proof 128.
See also R v Faraz [2012] EWCA Crim 2820, [2013] 1 WLR 2615.
17  R v Taylor (1928) 21 Cr App R 20, 21. See also R v Exall (1866) 4 F & F 922, 929; 176 ER 850, 853 per

Pollock CB. See generally K J Heller, ‘The Cognitive Psychology of Circumstantial Evidence’ (2006) 105
Michigan Law Review 241; A Samuels, ‘Circumstantial Evidence’ (2001) 165 Justice of the Peace 682.
18  Teper v R [1952] AC 480, 489.
19  See generally R v Smith [2011] EWCA Crim 1296, [2011] 2 Cr App R 16. See also C Baksi, ‘Fingerprint

Standards Questioned by Court of Appeal’, Law Society’s Gazette, 1 June 2011 (online); J W Bond, ‘The
Value of Fingerprint Evidence in Detecting Crime’ (2009) 11 International Journal of Police Science and
Management 77; S A Cole and A Roberts, ‘Certainty, Individualisation and the Subjective Nature of Expert
Fingerprint Evidence’ [2012] Criminal Law Review 824; W De Villiers, ‘Fingerprint Comparison Evidence
Has Been under Sustained Attack in the United States of America for the Last Number of Years:  Is the
Critique with Regard to Reliability Sufficiently Penetrating to Warrant the Exclusion of This Valuable
Evidence?’ (2012) 12 Oxford University Commonwealth Law Journal 317.
6
Introduc tion

3.3  Continuance
The fact that an event was taking place at a certain point in time may give rise to the infer-
ence that it was also taking place at a (sufficiently proximate) prior20 or subsequent21 point
in time.

3.4  Post-Offence Conduct

The Supreme Court of Canada has succinctly explained:
Under certain circumstances, the conduct of an accused after a crime has been com-
mitted may provide circumstantial evidence of the accused’s culpability for that crime.
For example, an inference of guilt may be drawn from the fact that the accused fled
from the scene of the crime or the jurisdiction in which it was committed, attempted
to resist arrest, or failed to appear at trial. Such an inference may also arise from
acts of concealment, for instance where the accused has lied, assumed a false name,
changed his or her appearance, or attempted to hide or dispose of incriminating
evidence.22

3.5  Reactions of Tracker Dogs

. . . if a dog handler can establish that a dog has been properly trained and that over a period
of time the dog’s reactions indicate that it is a reliable pointer to the existence of a scent
from a particular individual, then that evidence should properly be admitted.
However, it is important to emphasise two safeguards. First, the proper foundation must
be laid by detailed evidence establishing the reliability of the dog in question. Secondly,
the judge must, in giving his directions to the jury, alert them to the care that they need
to take and to look with circumspection at the evidence of tracker dogs, having regard to
the fact that the dog may not always be reliable and cannot be cross-examined [or indeed
even examined].23

3.6  Motive
Motive may constitute important circumstantial evidence. Thus:
Surely in an ordinary prosecution for murder you can prove previous acts or words of
the accused to shew he entertained feelings of enmity towards the deceased . . . Evidence
of motive necessarily goes to prove the fact of the homicide by the accused, as well as his
‘malice aforethought,’ inasmuch as it is more probable that men are killed by those who
have some motive for killing them than by those who have not.24

20  See R v Dalloz (1908) 1 Cr App R 258.

21  See Beresford v Justices of St Albans (1905) 22 TLR 1. 22  R v White [1998] 2 SCR 72 at [19].
23  R v Pieterson [1995] 1 WLR 293, 297–8. See also R v Sykes [1997] Crim LR 752 (although it would

have been better if the trial judge had expressly directed the jury in accordance with the guidance given in
Pieterson, in the light of the other directions given to the jury and the entirety of the evidence the convic-
tion could not be regarded as unsafe). See generally M Hansen, ‘Smells Fishy’ [Aug 2000] ABA Journal 22;
T Quigley, ‘Welcome Charter Scrutiny of Dog Sniffer Use: Time for Parliament to Act’ (2008) 55 Criminal
Reports (6th) 373; J Shapiro, ‘Confusion and Dangers in Lowering the Hunter Standards’ (2008) 55 Criminal
Reports (6th) 396; D Stuart, ‘Revitalising Section 8:  Individualised Reasonable Suspicion is a Sound
Compromise for Routine Dog Sniffer Use’ (2008) 55 Criminal Reports (6th) 376.
24  R v Ball [1911] AC 47, 68. See also R D Friedman and R C Park, ‘Sometimes what Everybody Thinks

they Know Is True’ (2003) 27 Law and Human Behavior 629.

Direc t E vidence and Circums tantial E vidence 7

3.7  Adverse Inferences

In civil trials, the failure of one party to give evidence or call witnesses may give rise to the
inference that the other party’s version of the facts withheld by the first party is correct.25
As the Court of Appeal has explained:
(1) In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to
give on an issue in an action.
(2) If a court is willing to draw such inferences, they may go to strengthen the evidence
adduced on that issue by the other party or to weaken the evidence, if any, adduced
by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the for-
mer on the matter in question before the court is entitled to draw the desired infer-
ence: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness’s absence or silence satisfies the court, then no such
adverse inference may be drawn. If, on the other hand, there is some credible explan­
ation given, even if it is not wholly satisfactory, the potentially detrimental effect of
his/her absence or silence may be reduced or nullified.26
The failure of the defence in a criminal trial to call a potential witness (other than the
accused) may be able to be the subject of a comment to the jury:
It is permissible for a judge in an appropriate case to tell the jury that they are entitled
to take into account the fact that a potential witness who has not been called has
not indeed been called. It is of course clear that in making any such comment, the
judge must exercise care . . . But, it would be wrong and inappropriate to seek to tie
the hands of the trial judge by laying down or attempting to lay down any particu-
lar formulae, because it must depend essentially upon the infinitely varying facts of
different cases . . .
. . . great care must be taken to avoid the possibility that injustice may be done by
leaving the jury under the impression that the failure to call a particular witness is
something of importance where in fact there may have been some perfectly good and
valid reason why a witness should not be called, which would not bear upon the jury’s
decision.27
Furthermore, in determining the guilt of a defendant, ‘such inferences from the refusal
as appear proper’ may be drawn if ‘the appropriate consent to the taking of an intimate
sample from [him or her] was refused without good cause’.28 As we shall see later in the
book, adverse inferences may also be drawn, in appropriate circumstances, from:
• the accused’s failure to mention facts when questioned or charged;29
• the accused’s failure or refusal to account for objects, substances, or marks;30
• the accused’s failure or refusal to account for presence at a particular place;31

25  British Railways Board v Herrington [1972] AC 877, 930 per Lord Diplock.
26  Wisniewski v Central Manchester Health Authority [1998] PIQR P324, P340.
27  R v Gallagher [1974] 1 WLR 1204, 1211. On the position in Australia see Dyers v R [2002] HCA 45.

See generally A J Papamatheos, ‘Can an Inference still Be Drawn against the Crown from Failure to Call a
Material Witness?’ (2006) 30 Criminal Law Journal 24.
28  Police and Criminal Evidence Act 1984, s 62(10). 29  See Chapter 5.
30  See Chapter 5. 31  See Chapter 5.
8
Introduc tion

• one of a number of specified failures in relation to disclosure by the accused, or

the fact that the accused at trial acts inconsistently in some way with the defence
disclosure;32
• the accused’s silence at trial.33

4  Testimonial Evidence and Real Evidence

Testimonial evidence is oral evidence. Thus, the testimony of a witness consists of the oral
statements made in court by that witness. Real evidence, on the other hand, is evidence
which may be inspected by the trier of fact. Examples of real evidence are diverse and
include the demeanour of witnesses, material objects such as the alleged murder weapon,
and evidence from out-of-court inspections of, for example, the scene of the crime. Such
inspections are known as ‘views’.34 During the well-publicized trial in the late 1990s of
Anthony Sawoniuk for war crimes committed in 1942, a view was taken of the scene of
the crimes in what is now Belarus.35
Experimentation in the jury room is, however, frowned upon:
Equipment which is required or designed to enable a jury to carry out unsupervised
scientific experiments in their room . . . [is] not permissible. On the other hand, . . . a
magnifying glass or a ruler, or come to that a tape measure, do not normally raise
even the possibility of any such experiments. Indeed they are the sort of objects
which any member of the jury might easily have in his pocket when summoned to
serve upon the jury, and there could be no possible objection to his using it in the
jury room. 36
Documents constitute a major category of real evidence. The Court of Appeal has
doubted the continued existence of any ‘best evidence rule’ in civil cases under which,
for example, secondary evidence of a document is not admissible unless the party seek-
ing to adduce the secondary evidence proves that it is not reasonably possible to produce
the document:
the time has now come when it can be said with confidence that the best evidence rule,
long on its deathbed, has finally expired. In every case where a party seeks to adduce
secondary evidence of the contents of a document, it is a matter for the court to decide,
in the light of all the circumstances of the case, what (if any) weight to attach to that evi-
dence. Where the party seeking to adduce the secondary evidence could readily produce
the document, it may be expected that (absent some special circumstances) the court will
decline to admit the secondary evidence on the ground that it is worthless. At the other
extreme, where the party seeking to adduce the secondary evidence genuinely cannot

32  See Chapter 3. 33  See Chapter 13.

34  See, eg, s 53 of the Uniform Evidence Acts in Australia, discussed by the High Court of Australia in
Evans v The Queen [2007] HCA 59.
35  R v Sawoniuk [2000] 2 Cr App R 220, 232: ‘The judge was . . . prepared to consider exercise of his judi-

cial powers to give the jury the best possible opportunity of assessing the reliability of the identification
evidence . . . the judge and jury did travel to Domachevo, and members of the jury had the opportunity to
stand where Mr Zan said he had stood when observing the scene at the massacre site, and also to observe
him from that position when he was standing where he said he had seen the appellant stand.’ See also
A Buncombe, ‘Jury to Visit Site of War Crimes’, The Independent, 9 Feb 1999, 5; J Clements, ‘Jurors Visit
Sands where Cocklers Died’, The Independent, 22 Sept 2005, 12; D Ormerod, ‘A Prejudicial View?’ [2000]
Criminal Law Review 452.
36  R v Maggs (1990) 91 Cr App R 243, 247.
Tes timonial E vidence and Re al E vidence 9

produce the document, it may be expected that (absent some special circumstances) the
court will admit the secondary evidence and attach such weight to it as it considers appro-
priate in all the circumstances. In cases falling between those two extremes, it is for the
court to make a judgment as to whether in all the circumstances any weight should be
attached to the secondary evidence. Thus, the ‘admissibility’ of secondary evidence of the
contents of documents is . . . entirely dependent upon whether or not any weight is to be
attached to that evidence. And whether or not any weight is to be attached to such second-
ary evidence is a matter for the court to decide, taking into account all the circumstances
of the particular case.37
In criminal cases section 133 of the Criminal Justice Act 2003 provides:
Where a statement in a document is admissible as evidence in criminal proceedings, the
statement may be proved by producing either—
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material
part of it,
authenticated in whatever way the court may approve.38
Photographs and photographic images constitute further examples of real evidence. In
A-G’s Reference (No 2 of 2002) the Court of Appeal, after a thorough review of the authori-
ties on photographic images, provided the following helpful summary:
there are . . . at least four circumstances in which, subject to the judicial discretion to
exclude, evidence is admissible to show and, subject to appropriate directions in the sum-
ming-up, a jury can be invited to conclude that the defendant committed the offence on
the basis of a photographic image from the scene of the crime:
(i) where the photographic image is sufficiently clear, the jury can compare it with the
defendant sitting in the dock . . .;
(ii) where a witness knows the defendant sufficiently well to recognise him as the
offender depicted in the photographic image, he can give evidence of this . . .; and
this may be so even if the photographic image is no longer available for the jury . . .;
(iii) where a witness who does not know the defendant spends substantial time view-
ing and analysing photographic images from the scene, thereby acquiring special
knowledge which the jury does not have, he can give evidence of identification based
on a comparison between those images and a reasonably contemporary photograph
of the defendant, provided that the images and the photograph are available to
the jury . . .;
(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of
identification based on a comparison between images from the scene, (whether
expertly enhanced or not) and a reasonably contemporary photograph of the
defendant, provided the images and the photograph are available for the jury.39

37  Springsteen v Masquerade Music Ltd [2001] EMLR 25 at [85].

38  On the issue of authentication see R v Skinner [2005] EWCA Crim 1439, a decision on s 27 of the
Criminal Justice Act 1988 (the forerunner to s 133 of the 2003 Act).
39  [2002] EWCA Crim 2373, [2003] 1 Cr App R 21 at [19]. See also R v Gardner [2004] EWCA Crim

1639 and, generally, G Porter, ‘A New Theoretical Framework regarding the Application and Reliability of
Photographic Evidence’ (2011) 15 International Journal of Evidence and Proof 26.
10
Introduc tion

5  The Allocation of Responsibility

Questions arising in a trial may be classified either as questions of law or as questions of
fact, and are determined by the trier of law or trier of fact respectively. In jury trials, the
trial judge is the trier of law while the jury is the trier of fact.40 In trials without a jury, the
trial judge or magistrate acts as both trier of law and trier of fact. Questions of law include
questions relating to the following matters:
• the substantive law;
• the competence of witnesses;
• whether particular evidence should be admitted or excluded;
• whether an issue should be withdrawn from the jury;
• in a criminal case with a jury, whether particular facts constitute an offence under
foreign law;41
• the directions which should be given by the trial judge in the course of summing
up to the jury. ‘The practice has developed in this country, unlike some other
common law jurisdictions, of trying to assist the jury to evaluate the evidence
that they have heard by giving a summary of the relevant parts of the evidence
and directions as to how to approach the evidence which are essentially matters
of common sense.’42 Detailed guidance on the crafting of directions is provided
by the Judicial College. This guidance43 previously took the form of specimen
directions.44
Questions of fact include questions relating to the following matters:
• the credibility of witnesses;
• the weight to be accorded to evidence;
• whether the facts in issue have been proved.
In criminal trials with a jury, the jury is usually sent out of the courtroom before dis-
cussions take place about whether a particular item of evidence should be admitted or
excluded. This is because, in the course of such discussions, reference to the evidence
in question is often inevitable. A decision on whether to admit or exclude the evidence
may be dependent on the existence of particular facts. For example, as we shall see in
Chapter 4, a confession by an accused person is not admissible in evidence unless the fol-
lowing facts are established: that the confession was not obtained by oppression, and that
the confession was not obtained in consequence of words or conduct conducive to unreli-
ability. A further example may be provided by an issue which will be examined in detail
in Chapter 11. Evidence which would otherwise be inadmissible hearsay is admissible in
criminal proceedings under an exception to the hearsay rule if the fact that the hearsay

40  See generally P Otton, ‘The Role of the Judge in Criminal Cases’ in M McConville and G Wilson (eds),

The Handbook of the Criminal Justice Process (2002).

41  Administration of Justice Act 1920, s 15; R v Okolie, The Times, 16 June 2000.
42  R v Campbell [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [32].
43  Available at http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Training/bench-
book_criminal_2010.pdf. See generally D Perry, ‘The Right Direction’ [Mar 2011] Counsel 34.
44  See generally R Munday, ‘Exemplum Habemus: Reflections on the Judicial Studies Board’s Specimen

Directions’ (2006) 70 Journal of Criminal Law 27.

The Alloc ation of Responsibilit y 11

statement was made sufficiently soon after the event which precipitated it that the mind
of the maker of the statement would still have been dominated by the event, can be estab-
lished. Where the facts on which the trial judge’s decision would depend are in dispute, he
or she must hear evidence from witnesses to determine the facts.45 Such evidence is given
on a special form of oath known as a voir dire.46 A hearing on the voir dire is known also
as a ‘trial within a trial’.
In criminal trials with a jury, the jury is usually sent out of the courtroom before a voir
dire hearing takes place. The Privy Council has spoken of the
right of a defendant in appropriate circumstances to require a voire dire to be held in the
absence of the jury . . . A judge may not override this right by requiring a jury to stay if the
defendant wants them to be excused . . . The reason why the voire dire must take place in
the absence of the jury is that the jury should not be made aware of evidence which subse-
quently turns out to be inadmissible.47
In criminal cases the traditional procedure involves determinations of whether evidence
should be excluded being made at the point of the trial at which it is sought to adduce
the evidence; it is only if the evidence is so crucial that the prosecution cannot even open
its case without referring to it that a determination of whether it should be excluded
may take place immediately after the jury has been sworn. However, this traditional
procedure now stands alongside the provision made by the Criminal Procedure and
Investigations Act 1996 for pre-trial hearings.48 Such hearings, which may be used to
make determinations of whether evidence should be excluded, take place before the jury
is sworn.49 The reporting of matters pertaining to a pre-trial hearing before the conclu-
sion of the relevant trial is prohibited.50
The obvious advantage of a pre-trial hearing is that it avoids the need for the jury
to be excluded from the courtroom for an indefinite period while a trial within a trial
takes place. Further, and perhaps more importantly, a pre-trial hearing would obviate
the need for full-scale preparations for a trial which could very well be abandoned
later if the accused changes his or her plea to guilty after defence attempts to obtain
exclusion fail, or if the prosecution decides not to proceed after defence attempts to
obtain exclusion succeed. However, ‘it is possible that the parties’ knowledge that a
jury has not been empanelled means that there is less pressure on them to co-operate
at the pre-trial stage than during the trial proper’, and thus there is a danger that
pre-trial hearings may themselves become slow-moving affairs which do little to
alleviate the problem of delay in the criminal justice process generally. Problems in
relation to pre-trial hearings may also be caused by the possible ‘lack of continuity
of judge and counsel, and the [lack of] incentives for lawyers to do more work at an
early stage’. 51

45  See generally R Pattenden, ‘Pre-Verdict Judicial Fact-Finding in Criminal Trials with Juries’ (2009) 29

Oxford Journal of Legal Studies 1.

46  ‘The title of the procedure comes from the French “vrai dire” and the Latin “veritatem dicere” literally

to “tell the truth”. “Voir” (sometimes spelt “voire”) is the Norman-French for “vrai” and reflects the long
lineage of this judicial procedure’: J H Phillips, ‘The Voir Dire’ (1989) 63 Australian Law Journal 46, 46.
47  Mitchell v R [1998] 2 WLR 839, 845.
48  See generally A Edwards, ‘The Criminal Procedure and Investigations Act 1996: (2) The Procedural

Aspects’ [1997] Criminal Law Review 321.

49  Ss 39, 40.
50  S 41. On the position in magistrates’ courts see the Magistrates’ Courts Act 1980, ss 8A–8D.
51  M Redmayne, ‘Process Gains and Process Values:  The Criminal Procedure and Investigations Act

1996’ (1997) 60 Modern Law Review 79, 88.

12
Introduc tion

In civil cases the position is as follows:

In general, disputes about the admissibility of evidence in civil proceedings are best left to
be resolved by the judge at the substantive hearing of the application or at the trial of the
action, rather than at a separate preliminary hearing. The judge at a preliminary hearing
on admissibility will usually be less well informed about the case. Preliminary hearings
can also cause unnecessary costs and delays.52
While there is no requirement that this invariably be done, it is obviously helpful for the
precise reasons for admitting or excluding a particular item of evidence to be articulated
as clearly as possible:
Undoubtedly there will be occasions when good practice requires a reasoned ruling.
For example, where the judge decides a question of law sufficient, but no more, must
be displayed of his reasoning to enable a review on appeal. Again, on a mixed question
of law and fact the judge should state his findings of fact so that the law can be put in
context. Similarly, the exercise of a discretion will often call for an account (however
brief) of the judge’s reasoning, especially where the issue concerns the existence of the
discretion as well as the way in which it should be exercised. These are no more than
examples. In every case it will depend on the circumstances whether reasons should
be given, and if so with what particularity. Frequently, there will be everything to gain
and little to lose by the giving of reasons, even if only briefly. But other situations are
different . . .
. . . In every instance, it is for the judge to decide whether the interests of justice call for
the giving of reasons, and if so with what degree of particularity.53
The Court of Appeal has emphasized that it would be desirable, in the interests of avoid-
ing difficulties and ensuring that cases are conducted with clarity, if there were discussion
at the end of the evidence of the points of evidence arising, and if an attempt were made to
reach, if not agreement, then at least an understanding about how they should be handled.
This is as important for counsel to know before addressing the jury as it is for the judge to
know before summing up.54 Furthermore, while it is the judge’s duty in summing up to
refer to the salient items of evidence,55 there is no obligation to rehearse all the evidence in
the case: brevity in summing up, as in examination and cross-examination of witnesses
and in the speeches of counsel, is a virtue and not a vice. In general, the longer a trial, the
greater the jury’s need for assistance from the judge in relation to the evidence. Many
jurors do not have the experience, ability, or opportunity of a judge to note significant
evidence and to cross-reference evidence from different sources which relate to the same
issue. Accordingly, in a trial lasting several days it would generally be of assistance to the
jury for the judge to summarize those factual issues which are not disputed and, where
there is significant dispute in relation to material facts, identify succinctly those pieces
of evidence which are in conflict. By so doing, the judge can focus the jury’s attention on
those factual issues which they have to resolve. It would never be appropriate, however,
for a summing-up to be a mere rehearsal of evidence. The Court of Appeal would not
look favourably on appeals based merely on a judge’s failure to refer to particular pieces
of evidence.56

52  Stroude v Beazer Homes Ltd [2005] EWCA Civ 265 at [10].
53  Wallace v R [1997] 1 Cr App R 396, 407–8. 54  R v N [1998] Crim LR 886.
55  R v Soames-Waring, The Times, 20 July 1998; [1999] Crim LR 89.
56  R v Farr (1998) 163 JP 193.
E xclusionary Rules and E xclusionary Discre tions 13

6  Exclusionary Rules and Exclusionary Discretions

Relevant evidence is liable to exclusion not only pursuant to the application of an
exclusionary rule, but also in the exercise of an exclusionary discretion. 57 Relevant
evidence which is not subject to an exclusionary rule and which is therefore admis-
sible, but which is excluded in the exercise of discretion, is sometimes erroneously
described as ‘inadmissible’. The most important exclusionary discretion is the
discretion, in criminal cases, to exclude prosecution evidence on the ground that
its probative value is outweighed by its prejudicial effect. 58 The principle that it is
only prosecution evidence which is subject to exclusion pursuant to the probative
value versus prejudicial effect discretion has not escaped criticism. 59 Such criticism
may be justified. It is arguable that the existence of a judicial discretion to exclude
defence evidence should be explicitly acknowledged, so that such evidence should
not automatically be admitted if it is considered ‘relevant’ and is not subject to an
exclusionary rule. The concept of ‘relevance’ is, as seen in Section 2, an imprecise
one. This being the case, it may be desirable to acknowledge openly the existence
of an exclusionary discretion in the context of defence evidence, so that the precise
reasons for excluding such evidence in a particular case are at least more likely to be
articulated, rather than cloaked in a finding of ‘irrelevance’. Interestingly, the Court
of Appeal stated that ‘we should not like it to be thought that we have concluded that
such a discretion can never exist, although the authorities make it difficult to hold
that it does’. 60
Another important exclusionary discretion is that provided for by section 78(1) of
the Police and Criminal Evidence Act 1984. This enables prosecution evidence to be
excluded in the interests of ensuring the fairness of a trial.
While it was traditionally doubted whether there was a discretion to exclude
admissible evidence in civil cases, it is now accepted that rule 32.1 of the Civil
Procedure Rules gives the court such a discretion. Rule 32.1 provides:
(1) The court may control the evidence by giving directions as to—
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would other-
wise be admissible.
(3) The court may limit cross-examination.

57  See, however, for a comparative perspective, S Chen, ‘The Judicial Discretion to Exclude Relevant

Evidence:  Perspectives from an Indian Evidence Act Jurisdiction’ (2012) 16 International Journal of
Evidence and Proof 398.
58  R v Randall [2003] UKHL 69, [2004] 1 WLR 56 at [18]: ‘the discretionary power to exclude relevant evi-

dence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not
apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at
the request of one accused to exclude relevant evidence tending to support the defence of another accused’.
For Canadian discussion see R H Tanha, ‘The Trial Judge’s Four Discretions to Exclude Technically
Admissible Evidence at a Criminal Trial’ (2012) 36 Manitoba Law Journal 143.
59  R Pattenden, Judicial Discretion and Criminal Litigation (1990) 259.
60  R v Thompson [1995] 2 Cr App R 589, 597.
14
Introduc tion

The Court of Appeal has commented: ‘While we do not think that one should simply read
across into rule 32 of the Civil Procedure Rules the jurisprudence relating to the powers
long exercised by judges in a criminal trial, it can no longer be argued that the civil court
has no jurisdiction to exclude relevant and admissible evidence in a civil case.’61
The essential difference between exclusionary rules and exclusionary discretions
relates to the attitude of appellate courts. An appeal on the basis of an allegedly erroneous
exercise of discretion is not treated by an appellate court in the same way as an appeal on
the basis of an alleged misapplication of a rule of law. If, on applying an exclusionary rule,
a trial judge in a Crown Court concludes that the evidence should not be excluded, the
Court of Appeal will not hesitate to substitute its own conclusion if it disagrees with that
reached by the trial judge. It is immaterial that the trial judge may have, in reaching his
or her conclusion, taken all relevant factors into account and left irrelevant factors out of
consideration.62 However, where a decision is reached pursuant to judicial discretion and
this decision is the subject of an appeal, the appellate court will interfere with the decision
only in limited circumstances. In considering the issue of the circumstances in which the
Court of Appeal should interfere with a decision reached pursuant to judicial discretion,
Lord Denning MR said in Ward v James:
This court . . . will interfere if it can see that the judge has given no weight (or no sufficient
weight) to those considerations which ought to have weighed with him. . . . Conversely it
will interfere if it can see that he has been influenced by other considerations which ought
not to have weighed with him, or not weighed so much with him . . .63
In a similar vein, Scarman LJ observed in R v Scarrott that, so long as a trial judge
‘does not err in law, takes into account all relevant matters and excludes consideration
of irrelevant matters, his discretion will stand’.64 Again, in R v Quinn, it was said that
‘before . . . reach[ing] the conclusion that the judge was wrong . . . [the Court of Appeal]
would have to be satisfied that no reasonable judge, having heard the evidence that this
learned judge did, could have reached the conclusion that he did’.65
As their label suggests, exclusionary discretions are ‘discretionary’ in nature, in the
sense that the tests to be applied by trial judges in deciding whether to exercise such dis-
cretions are typically flexible and open-textured. In other words, a degree of latitude is
accorded to the trial judge in deciding whether to exclude the evidence. By contrast, exclu-
sionary rules are traditionally more rigid, often prescribing that, where certain conditions

61  Grobbelaar v Sun Newspapers Ltd, The Times, 12 Aug 1999 (transcript from Smith Bernal). See also

Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954 (discussed in Chapter 7); O’Brien
v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534 (discussed in Chapter  10); K
Grevling, ‘CPR R 32.1(2): Case Management Tool or Broad Exclusionary Power?’ in D Dwyer (ed), The Civil
Procedure Rules Ten Years On (2009).
62  See R v Viola (1982) 75 Cr App R 125, 130–1.
63  [1966] 1 QB 273, 293. See D Herling, ‘Weight in Discretionary Decision-Making’ (1999) 19 Oxford

Journal of Legal Studies 583, 593: ‘To weigh a factor is to gauge the force with which it advocates a particular
solution to the question which the decision-making process is designed to resolve.’
64  [1978] QB 1016, 1028. ‘In my opinion a judge reaches a decision in the exercise of his “discretion” . . . where,

on the facts found by or agreed before him and on the law correctly stated by him, he is required in the exercise
of his judicial function to decide between two or more courses of action without any further rules governing
the decision which he should make, other than that he should act judicially. It is just because this is the nature
of such a task facing a judge that this court is restricted by the authorities to the extent to which it can inter-
fere. Unless his decision is perverse in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v
Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223), it must be one to which a judge, acting judicially, could
come’: Viscount De L’Isle v Times Newspapers [1987] 3 All ER 499, 504 per May LJ.
65  [1995] 1 Cr App R 480, 489. Cited approvingly by the Court of Appeal in R v Dures [1997] 2 Cr App R

247, 261–2.
E xclusionary Rules and E xclusionary Discre tions 15

are satisfied, a particular consequence will automatically follow. A classic example of this,
as we shall see in Chapter 11, is the rule against hearsay in criminal proceedings. Where,
in a criminal trial, an item of evidence falls within the definition of hearsay, it must auto-
matically be excluded, unless it comes within one of the prescribed exceptions to the rule.
There has been much debate as to the desirability of allowing trial judges more discre-
tion (whether in the context of exclusionary rules or exclusionary discretions) in deter-
mining whether evidence should be admitted or excluded.66 Wigmore once denounced
the idea of increased discretion in the law of evidence in colourful terms: ‘Is it not prob-
able that in these proposed large areas of “discretion” the Law of Evidence will suffer . . . a
relapse into that primal condition of chaos, described in Genesis 1:2, when the Earth “was
without form and void”?’67 Courts in earlier times, too, viewed the notion of judicial dis-
cretion with some suspicion.68 The issue of the relative merits and demerits of discretion-
ary, as opposed to rule-based, approaches to the law of criminal evidence and procedure
continues to be the subject of a good deal of discussion.69 The main objection voiced to
vesting considerable discretion in trial judges is that the resulting uncertainty and unpre-
dictability would make preparation for trial, and planning and decision-making gener-
ally, more difficult.70 This is an argument on which it is easy to place too much weight. It is
unlikely that uncertainty and unpredictability would pose a problem after the emergence
of a substantial body of case law which lays down clear guidelines in the form of factors
to be taken into account by a trial judge in deciding whether to admit or exclude the evi-
dence. An appropriate balance should be able to be struck between maintaining flexibil-
ity, and considerations such as the promotion of certainty and predictability.71 Further,
the objection assumes that there is certainty and predictability where the determination
of whether to admit or exclude is governed by rigid tests. This is far from being the case:72
prior to the fundamental reforms to criminal hearsay doctrine effected by the Criminal
Justice Act 2003,73 courts regularly misapplied the hearsay rule, or evaded it altogether,
in order to achieve the admissibility of highly cogent evidence.74 Paradoxically, therefore,

66
  See C Tapper, ‘The Law of Evidence and the Rule of Law’ [2009] Cambridge Law Journal 67 and, from
a Canadian perspective, L Dufraimont, ‘Realizing the Potential of the Principled Approach to Evidence’
(2013) 39 Queen’s Law Journal 11; P Sankoff, ‘The Search for a Better Understanding of Discretionary Power
in Evidence Law’ (2007) 32 Queen’s Law Journal 487.
67
  J H Wigmore, ‘The American Law Institute Code of Evidence Rules: A Dissent’ (1942) 28 American
Bar Association Journal 23, 24.
68  See, eg, R v Cargill (1913) 8 Cr App R 224, 229.
69  See A L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed 2008) 155–66,

and the references cited therein. See also A M Gleeson, ‘Individualised Justice—The Holy Grail’ (1995) 69
Australian Law Journal 421; C E Schneider, ‘Discretion and Rules: A Lawyer’s View’ in K Hawkins (ed),
The Uses of Discretion (1992); A Stein, ‘Evidential Rules for Criminal Trials: Who Should Be in Charge?’ in
S Doran and J D Jackson (eds), The Judicial Role in Criminal Proceedings (2000); C R Sunstein, ‘Problems
with Rules’ (1995) 83 California Law Review 953; Law Commission (Consultation Paper No 141), Criminal
Law—Evidence in Criminal Proceedings: Previous Misconduct of a Defendant—A Consultation Paper (1996)
[9.46]–[9.50]; S Walker, Taming the System: The Control of Discretion in Criminal Justice 1950–1990 (1993).
70  See generally C E Schneider, ‘Discretion and Rules: A Lawyer’s View’, 76–7, in K Hawkins (ed), The

Uses of Discretion (1992).

71  See generally A M Gleeson, ‘Individualised Justice—The Holy Grail’ (1995) 69 Australian Law Journal 421.
72  See C T McCormick, ‘The Borderland of Hearsay’ (1930) 39 Yale Law Journal 489, 503 (‘[It is assumed

that a fixed categorical approach to admissibility] enable[s]‌ the lawyer preparing his case to know in
advance with fair certainty what he can get in, and what he cannot. If a question as to admissibility does
arise, the judge who has no time for subtle discrimination in the heat of trial can make a decision in his
stride, as it were. This is splendid, and the only difficulty is that it does not work’).
73  See Chapter 11.
74  See generally D J Birch, ‘Hearsay-Logic and Hearsay-Fiddles:  Blastland Revisited’ in P Smith (ed),

Criminal Law: Essays in Honour of J C Smith (1987); A L-T Choo, Evidence: Text and Materials (1998) 304–15.
16
Introduc tion

the introduction of a more discretionary approach might well increase, rather than
decrease, certainty and predictability.
Where exclusionary discretions are encountered in the law of evidence, it is important
to determine whether clear guidelines have been laid down by the courts to govern the
exercise of the particular discretion, and if so to assess whether these guidelines clearly
reflect the rationale for the existence of the discretion.

7  Free(r) Proof
Allied with the growing reliance on ‘discretionary’ tests to determine whether evidence
should be admitted or excluded has been an increasing embracement of the concept
of free proof. The term ‘free proof ’ may be taken ‘to refer to natural or common sense
modes of reasoning about facts at trial, unconstrained by artificial, mandatory pre-
cepts, such as strict rules excluding classes of evidence or witnesses’.75 Jeremy Bentham
argued, in effect, that all relevant evidence should be admitted, with exclusion justi-
fied only if admission would result in vexation, expense, or delay.76 Unsurprisingly,
‘no common law country has yet implemented Bentham’s proposals for total abolition
of the technical rules’.77 As will be seen throughout this book, however, the courts’
response to allegedly unreliable evidence is increasingly to decline to exclude it alto-
gether from the jury’s consideration, but to allow the jury to evaluate it after being
provided with an appropriate warning by the trial judge.78 It is notable, as Twining
has pointed out, ‘that it is the proponents of “Law-and-Order”, generally regarded as

75
  W Twining, ‘Freedom of Proof and the Reform of Criminal Evidence’ (1997) 31 Israel Law Review 439,
439 n 1. See also D M Dwyer, ‘What Does it Mean to Be Free? The Concept of “Free Proof ” in the Western
Legal Tradition’ (2005) 3(1) International Commentary on Evidence; P Murphy, ‘No Free Lunch, No Free
Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials’ (2010)
8 Journal of International Criminal Justice 539, 540 (‘In the context of adversarial trial proceedings, “free
proof” is a euphemism for a systemic failure of judicial discrimination in admitting evidence without
inquiring into its apparent provenance or reliability, or even into the possibility that it may be perjured or
manufactured’).
76
  J Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice (Vol 1) (1827) (reprinted
1978) 1.
77  W Twining, Rethinking Evidence:  Exploratory Essays (2nd ed 2006)  200. See also P Murphy, ‘The

Technical Aspects of Technicality: A Slightly Whimsical Inquiry into What Makes a Rule of Evidence or
Procedure “Technical”’ (2011) 15 International Journal of Evidence and Proof 144.
78  The relationship between exclusion and warnings is explored by a Canadian commentator, who

notes that exclusion limits the jury while warnings educate it. See L Dufraimont, ‘Regulating Unreliable
Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?’ (2008) 33 Queen’s Law
Journal 261, 280: ‘A jury’s tendency to rely too heavily on a given form of evidence can be controlled in
two basic ways. First, courts can combat the jury’s knowledge deficit with information, sensitizing jurors
to reliability problems in hopes that they will place neither too much nor too little weight on the prosecu-
tion’s evidence. Alternatively, courts can suppress the jury’s use of the evidence by restricting its freedom
to access or evaluate it. . . . these two jury control methods [may be labelled], respectively, educating and
limiting the jury. Canadian courts normally educate jurors by giving them cautionary instructions, and
limit them by excluding evidence.’ The tendency in England and Wales to rely increasingly on ‘educating’
the jury is also evident in the law relating to abuse of process. The abuse of process doctrine allows, inter
alia, criminal proceedings to be stayed as an abuse of the process of the court if their continuation would
compromise the accused’s right to a fair trial. Although it is well settled that proceedings may be stayed on
account of pre-trial delay, a number of recent decisions have suggested that, in some cases, the right to a fair
trial would be sufficiently protected by warnings to the jury about the possible implications of the delay;
an outright stay of the proceedings would not be required. See generally A L-T Choo, Abuse of Process and
Judicial Stays of Criminal Proceedings (2nd ed 2008) Ch 3.
Issues in Criminal E vidence 17

conservatives or reactionaries, who claim to have reason on their side and who attrib-
ute the survival of the technical rules to the sinister economic interests of a privileged
group, the legal profession’.79
Paradoxically, the move away from reliance on the total exclusion of evidence has not
been accompanied by any real development of rules governing the evaluation of admitted
evidence. ‘Throughout history Anglo-American triers of fact have been almost entirely
free from rules of quantum and weight.’80 Scholars such as Twining81 have criticized the
English law of evidence for remaining too heavily focused on questions of whether par-
ticular evidence is to be admitted or excluded, and for its consequent marginalization
of questions of how particular evidence which has been admitted is to be evaluated. As
will be seen in the course of this book, this criticism is to a large extent justified. Putting
aside the law’s expectation that those responsible for evaluating evidence are apprised in
appropriate circumstances of its possible unreliability, the actual process of evaluating
evidence is considered to be a question of fact with which the law of evidence has little
concern. Indeed, Wigmore went so far as to describe any discussion of rules of weight or
credibility as ‘moral treason’.82

8  Issues in Criminal Evidence

It is important, given the special position of criminal evidence, to identify the considera-
tions upon which the law of criminal evidence is premised. Essentially, it may be said that
underlying the principles of criminal evidence are considerations of both intrinsic policy
and extrinsic policy. The concern of intrinsic policy is with the promotion of accurate
fact-finding or truth83 discovery, or, in other words, with what Jeremy Bentham called
‘rectitude of decision’.84 The need to ensure that evidence is as reliable as possible is espe-
cially important in the case of prosecution evidence, because the admission of unreli-
able prosecution evidence could lead to the wrongful conviction of an innocent person.
‘People have’, in the words of Ronald Dworkin, ‘a profound right not to be convicted of
crimes of which they are innocent.’85 There is a public dimension to this right: ‘When an
innocent person is convicted, we all lose (except[,]‌ of course, the actual guilty person).’86

79 W Twining, Rethinking Evidence: Exploratory Essays (2nd ed 2006) 200.

80 W Twining, ‘Freedom of Proof and the Reform of Criminal Evidence’ (1997) 31 Israel Law Review
439, 448.
81  See generally W Twining, Rethinking Evidence: Exploratory Essays (2nd ed 2006).
82  Book review by J H Wigmore, (1909) 3 Illinois Law Review 477, 478.
83  For a critical discussion of the concept of ‘truth’ see generally K D Kilback and M D Tochor, ‘Searching

for Truth but Missing the Point’ (2002) 40 Alberta Law Review 333. See also M L Friedland, ‘Searching
for Truth in the Criminal Justice System’ (2014) 60 Criminal Law Quarterly 491; D Nicolson, ‘Taking
Epistemology Seriously: “Truth, Reason and Justice” Revisited’ (2013) 17 International Journal of Evidence
and Proof 1.
84  J Bentham, Rationale of Judicial Evidence, Specially Applied to English Practice (Vol 1) (1827) (reprinted

1978) 1.
85  R Dworkin, A Matter of Principle (1986) 72.
86  A H Loewy, ‘Systemic Changes that Could Reduce the Conviction of the Innocent’ (2007) 18 Criminal

Law Forum 137, 149. See also E Colvin, ‘Convicting the Innocent:  A  Critique of Theories of Wrongful
Convictions’ (2009) 20 Criminal Law Forum 173; B MacFarlane, ‘Convicting the Innocent: A Triple Failure
of the Justice System’ (2006) 31 Manitoba Law Journal 403 (who provides a detailed account of the causes of
wrongful convictions and recommendations for their avoidance); M Naughton, ‘Criminologizing Wrongful
Convictions’ (2014) 54 British Journal of Criminology 1148; B L Garrett, Convicting the Innocent: Where
Criminal Prosecutions Go Wrong (2011).
18
Introduc tion

The crucial question for the evidence lawyer, however, is how far the law of criminal evi-
dence should go in protecting the innocent from wrongful conviction. If the right of the
innocent not to be convicted were to be regarded as an absolute right (in other words, if
what we are seeking is maximum protection of the innocent), then it is arguable that the
prosecution should not be permitted to rely upon any category of evidence which can be
seen to be inherently unreliable (a category which might include, for example, confes-
sion evidence and visual identification evidence). A blanket ban on such evidence would,
however, probably have the effect of leading to the widespread acquittal of the guilty, and
would therefore be regarded as unpalatable. It is clearly not required ‘that every conceiv-
able step be taken, at whatever cost, to eliminate the possibility of convicting an innocent
person’.87 In examining intrinsic policy considerations, therefore, it is important not to
lose sight of the underlying tension between, on the one hand, the pressure to admit all
relevant prosecution evidence, and, on the other hand, the need to protect the innocent
from conviction.
As we shall see throughout this book, a number of evidential principles are jus-
tified in English law on the ground that they ensure the reliability of evidence.
A prime example is provided by the limitations placed on the admissibility of hearsay
evidence.88 Concerns about reliability also underlie the principles relating to corrobo-
ration and supporting evidence. Certain types of evidence require to be corroborated
by other evidence in order to be admissible, 89 and there is a general principle in the law
of evidence
that a ‘special warning’ is necessary if experience, research or common sense has indi-
cated that there is a difficulty with a certain type of evidence that requires giving the jury
a warning of its dangers and the need for caution, tailored to meet the needs of the case.
This will often be the case where jurors may be unaware of the difficulty, or may insuf-
ficiently understand it.
The strength of the warning and its terms will depend on the nature of the evidence, its
reliability or lack of it, and the potential problems it poses.90
It should be noted that evidence may be excluded in English law not only because of its
potential unreliability, but also because of considerations of extrinsic policy which do not
relate to reliability.91 Such considerations as the importance of upholding values and pro-
tecting the moral integrity of the criminal justice system may dictate that evidence should
sometimes be excluded even if reliable. Thus Galligan has written that
there are two distinct issues: (i) one concerns rules about the probative value of evi-
dence; (ii) the other concerns rules about the exclusion of evidence for reasons other
than reasons of evidentiary value. The question in (i) is how to deal with evidence the
probative value of which is in doubt, or which, although of probative value, contains a
degree of risk that it will be used improperly . . . The guiding objective in these cases is
rectitude of outcome; the question is, given some such uncertainty or defect, how best

87  Patterson v New York 432 US 197, 208 (1977).

88  But see H L Ho, A Philosophy of Evidence Law: Justice in the Search for Truth (2008) Ch 5.
89  See Perjury Act 1911, s 13; Road Traffic Regulation Act 1984, s 89.
90  R v Luttrell [2004] EWCA Crim 1344, [2004] 2 Cr App R 31 at [42]–[43]. For example, warnings are

required in relation to identification evidence (R v Turnbull [1977] QB 224) and evidence of a confession

made by a mentally handicapped person not in the presence of an independent person (Police and Criminal
Evidence Act 1984, s 77(1)).
91  Such considerations are not necessarily uncontroversial: see, eg, L Laudan, Truth, Error, and Criminal

Law: An Essay in Legal Epistemology (2006); W T Pizzi, Trials without Truth: Why Our System of Criminal
Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It (1999).
Civil E vidence and Criminal E vidence 19

is rectitude achieved; what is the most rational procedure for obtaining an accurate
outcome. These are issues internal to proof. In (ii) the issue is whether certain kinds of
evidence, which are likely to be of probative value and therefore relevant in achieving
rectitude, should be excluded, in order to advance other values or policies . . . These are
issues external to proof; they are based on values which compete with rectitude. The
exclusion of evidence in order to uphold those values may mean the loss of probative
evidence and thus a lower level of accuracy. The distinction between (i) and (ii) is funda-
mental, since (i) is concerned with the rationality of proof, while (ii) is concerned with
the conflict of values.92
The issue of extrinsic policy considerations is best illustrated by reference to the problem
of improperly obtained evidence, discussed in Chapter 7. Suppose that a piece of prosecu-
tion evidence has been obtained illegally by the police, but that there is no suggestion
that this evidence may be unreliable. If the sole concern of the courts were with intrinsic
policy considerations, it would have to be said that there is no reason to exclude the evi-
dence. This would be the case despite the seriousness of the police illegality. Yet the courts
have acknowledged that improperly obtained, yet reliable, evidence is liable to exclu-
sion in certain circumstances. The exact rationale for such exclusion will be explored in
Chapter 7, but for present purposes one should note the extension of the courts’ exclu-
sionary jurisdiction beyond the confines of considerations of intrinsic policy.93 When
progressing through this book, readers must assess how well considerations of intrinsic
and/or extrinsic policy are accommodated within the individual doctrines of the law of
criminal evidence that are encountered.

9  Civil Evidence and Criminal Evidence

There are two fundamental differences between civil procedure and criminal procedure.
First, while rectitude of decision is obviously important in civil proceedings, it is not
allied to the need to protect the innocent from wrongful conviction. Secondly, extrinsic
policy considerations do not, again, assume the same dimension in civil proceedings as
they do in criminal proceedings. The peculiar nature of due process considerations in
criminal proceedings is well captured by Packer:
The combination of stigma and loss of liberty that is embodied in the end result of the
criminal process is viewed as being the heaviest deprivation that government can inflict
on the individual. Furthermore, the processes that culminate in these highly afflictive
sanctions are seen as in themselves coercive, restricting, and demeaning.94
These differences may suggest that there should, in reality, be not one, but two, ‘laws’ of
evidence. Indeed, numerous illustrations of the manner in which the principles of civil

92  D J Galligan, ‘More Scepticism about Scepticism’ (1988) 8 Oxford Journal of Legal Studies 249, 255

(italics in original). See also T J Reed, ‘Evidentiary Failures: A Structural Theory of Evidence Applied to
Hearsay Issues’ (1994) 18 American Journal of Trial Advocacy 353, 362.
93  Stein suggests, however, that principles of exclusion that are based on considerations ‘properly

classified as extraneous to fact-finding’ are not appropriately viewed as being strictly within the prov-
ince of the law of evidence: ‘evidential rules that override accuracy in fact-finding for the sake of other
objectives and values . . . do not belong to the central core of the Anglo-American evidence doctrine’
(A Stein, Foundations of Evidence Law (2005) 110). This view has been criticized by D Hamer, ‘The Truth
Will Out? Incoherence and Scepticism in Foundations of Evidence Law’ (2007) 70 Modern Law Review
318, 321–2.
94  H L Packer, The Limits of the Criminal Sanction (1969) 165–6.
20
Introduc tion

and criminal evidence differ will be encountered in the course of this book. For the pre-
sent, three brief examples will suffice:
• There is a presumption in criminal cases that every issue be proved by the prosecu-
tion as the party bringing the action. In civil cases, however, there is no presumption
that the claimant prove every issue.
• The rule against hearsay has been effectively abolished in civil cases, but remains
applicable (albeit subject to wide-ranging exceptions) in criminal cases.
• Specific rules of a fairly complex nature apply in relation to evidence of a defend-
ant’s bad character in criminal proceedings, but there are no analogous rules in civil
proceedings.

10  The Implications of Trial by Jury

Writing in 1898, the great American evidence scholar Thayer described the law of evi-
dence as ‘the child of the jury system’.95 Over time, ‘even as jury trial has declined, most
lawyers, judges, and scholars have continued to approach evidentiary issues from inside
a framework that designates jury trial as the paradigmatic form of adjudication’.96 It is
therefore still true to say today that the existence of some of the major exclusionary rules
of criminal evidence is attributable, at least in part, to the phenomenon of trial by jury.
This is despite the fact that, statistically, trials with a jury account for only a small per-
centage of all criminal trials. Thus, the rule against hearsay in criminal trials is often
justified on the ground that juries may lack the ability to assess properly the reliability of
hearsay evidence on a case-by-case basis, and thus it is preferable that a general ban on
such evidence (albeit one that is now subject to wide-ranging exceptions) be maintained.
In a similar vein, the existence of a specific statutory regime governing evidence of a
defendant’s bad character in criminal proceedings may be justified on the ground that
such evidence is easily misused by juries.97
Are such assumptions about the jury really justified? The short answer to this is that
we simply have no way of knowing for certain. Certainly, scepticism about the validity of
such assumptions is growing. As Weinstein, an eminent American evidence scholar and
later a judge, has noted vividly:
Many rules of evidence can be understood only in terms of the judge’s need to rigidly con-
trol a group of ignorant illiterates—the jury. But change is . . . apparent here: the present
day juror is much more sophisticated and educated than was the juror sitting when the
rules of evidence solidified in the last century.98
Any serious empirical research in England and Wales into how juries handle evi-
dence must take account of section 8(1) of the Contempt of Court Act 1981, which pro-
vides: ‘Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit
any particulars of statements made, opinions expressed, arguments advanced or votes

95  J B Thayer, A Preliminary Treatise on Evidence at the Common Law (1969; first pub 1898) 266.
96  L Dufraimont, ‘Evidence Law and the Jury: A Reassessment’ (2008) 53 McGill Law Journal 199, 242.
97  See generally M Coen, ‘Hearsay, Bad Character and Trust in the Jury: Irish and English Contrasts’

(2013) 17 International Journal of Evidence and Proof 250; P J Maartens and P J Schwikkard, ‘A Juryless
Jurisdiction and the Epistemic Rules of Evidence’ (2011) 128 South African Law Journal 513.
98  J B Weinstein, ‘Some Difficulties in Devising Rules for Determining Truth in Judicial Trials’ (1966) 66

Columbia Law Review 223, 225.

The Implic ations of Trial by Jury 21

cast by members of a jury in the course of their deliberations in any legal proceedings.’99
Participants in empirical research on juries and the principles of criminal evidence that is
based on simulated ‘trials’ involving mock jurors are not exposed to the atmosphere, drama,
and tension of a real trial, and may not therefore (consciously or otherwise) react in the same
way as they would in the context of a real trial. The Law Commission has recommended that
section 8 be amended to allow approved academic research into jury deliberations.100
In a quest for greater transparency, Lord Justice Auld, in a review of the operation of
the criminal courts, recommended the introduction of a system under which juries are in
effect required to justify their verdicts:
• the judge should devise and put to the jury a series of written factual questions, the
answers to which could logically lead only to a verdict of guilty or not guilty; the ques-
tions should correspond with those in the updated case and issues summary, sup-
plemented as necessary in a separate written list prepared for the purpose; and each
question should be tailored to the law as the judge knows it to be and to the issues and
evidence in the case; and
• the judge, where he considers it appropriate, should be permitted to require a jury to
answer publicly each of his questions and to declare a verdict in accordance with those
answers.101
The introduction of such a system does not currently appear to be under serious
consideration.
It might be tempting to argue that, given the uncertainty about whether juries are capa-
ble of what is expected of them,102 it would be fairer to move to a system of trial by judge
alone. The obvious problem with this suggestion is that—any considerations pertain-
ing to the intrinsic value of jury trial aside—it is premised on a further assumption: that
professional judges would necessarily perform better than lay jurors. As Zuckerman has
observed:
Given that common-sense reasoning and moral sentiment influence fact-finding whether
by judge or jury it is difficult to see what can be achieved by a change from lay judges to
professional ones. Furthermore, if professional judges become triers of fact, the amount
of prejudicial evidence will increase due to the assumption in judicial circles that profes-
sional judges are immune from prejudice and need not necessarily be kept ignorant of
such evidence.103

99  See R v Mirza [2004] UKHL 2, [2004] 1 AC 1118; G Daly, ‘Jury Secrecy: R v Mirza; R v Connor

and Rollock’ (2004) 8 International Journal of Evidence and Proof 186; R Fisher, ‘Privacy of the Jury’
(2004) 148 Solicitors’ Journal 158; G Langdon-Down, ‘Doing Secret Service’ (2004) 101(6) Law Society’s
Gazette 18.
100  Law Commission (Law Com No 340), Contempt of Court (1):  Juror Misconduct and Internet

Publications (2013) [4.49].

101  Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001) Ch 11 para 55,

accessible via http://www.criminal-courts-review.org.uk/. See also R L Lippke, ‘The Case for Reasoned
Criminal Trial Verdicts’ (2009) 22 Canadian Journal of Law and Jurisprudence 313; J R Spencer,
‘Inscrutable Verdicts, the Duty to Give Reasons and Article 6 of the European Convention on Human
Rights’ [2001] 1 Archbold News 5. See, however, D Rhodes, ‘Quixotic Endeavours’, Solicitors’ Journal,
19 Jan 2010 (online).
102  For a discussion of recent controversy, see J Robins, ‘Juries on Trial Again’ (2013) 177 Criminal Law

and Justice Weekly 167.

103  A A S Zuckerman, The Principles of Criminal Evidence (1989) 262 n 36. Note also the colourful com-

ment, in relation to evidence of an accused’s propensity for wrongdoing, by M R Damaška, ‘Propensity

Evidence in Continental Legal Systems’ (1994) 70 Chicago-Kent Law Review 55, 65: ‘Unfortunately, there
22
Introduc tion

Surely, if the system of jury trial is regarded as being of intrinsic value and as a fun-
damental facet of the criminal justice system, it is the principles of criminal evidence
which should be adapted to fit properly into the system. It is not the system that should
be tinkered with to enable the principles of criminal evidence to be accommodated
within it.
Reference will be made at appropriate points in this book to the results of some of the
relevant empirical research on jury decision-making undertaken in England and else-
where.104 One example of such research on juries and the principles of criminal evidence
is the LSE Jury Project in England. This was a study involving groups of jurors being
invited ‘to listen to a tape-recording re-enacted from the transcript of a real trial, and
then to reach a verdict upon what they have heard’. The experiments were ‘conducted
under laboratory conditions so that the jurors could be observed and their deliberations
recorded for later analysis’. Observations were made of ‘how different applications of par-
ticular rules of evidence might affect the verdicts given by jurors’. The limitations of such
a study were acknowledged:
There are drawbacks in using laboratory experimentation as a means of discover-
ing how actual juries operate ‘on the job.’ If the experimental trial consists of a tape
recording of spoken voices (as was the case in . . . our own experiments), the ‘jurors’
are deprived of the myriad impressions made up of things seen in the court room.
Even if the experiment is set up on a grand and expensive scale, using a filmed trial,
or even a trial performed by actors, the jury will know that they are not deciding the
fate of an actual defendant. . . . [However,] [o]‌u r observation of the course of [the mock
jurors’] discussions showed them to be deeply immersed, entirely serious, often vehe-
mently argumentative, to all appearances oblivious that the situation was only an
experiment.105
Additionally, in 1995, the Home Office commissioned the Centre for Socio-Legal
Studies at the University of Oxford to conduct research, again with mock trials, into
the effect on mock juries of knowing that the defendant had a previous conviction.106
Of some interest also is the Crown Court Study undertaken for the Royal Commission
on Criminal Justice that reported in 1993. The Crown Court Study was based on every
case completed in the last two weeks of February 1992 in all Crown Courts in England
but three, and involved administering questionnaires to those regarded as the main
actors in each case—the judge, the prosecution and defence barristers, the defence
solicitor, the Crown Prosecution Service, the police, the court clerk, the defendant, and
the members of the jury.107

is no solid ground in psychology for the belief that only novice factfinders succumb to the temptation of
drawing negative conclusions from a person’s unsavory life history, while professional adjudicators are
immune, even in close cases, to the syren’s call of these inferences.’ See also R Munday, ‘Case Management,
Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence’ (2006) 10 International Journal of
Evidence and Proof 81.
104  See generally P Darbyshire, ‘What Can We Learn from Published Jury Research? Findings for the

Criminal Courts Review 2001’ [2001] Criminal Law Review 970; P Darbyshire, A Maughan, and A Stewart,
‘What Can the English Legal System Learn from Jury Research Published up to 2001?’, accessible via http://
www.criminal-courts-review.org.uk/.
105  LSE Jury Project, ‘Juries and the Rules of Evidence’ [1973] Criminal Law Review 208, 210.
106  Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal Proceedings:

Previous Misconduct of a Defendant—A Consultation Paper (1996) App D.

107  M Zander and P Henderson, The Royal Commission on Criminal Justice: Crown Court Study (1993).
L aw Reform 23

11  Summary Trials
In spite of the fact that the law of evidence has evolved around trials on indictment, the
same law is applicable generally to summary trials. The absence of a discrete law of evi-
dence applicable to the proceedings where the vast majority of criminal defendants are
tried, and where very different considerations prevail from those prevailing in trials on
indictment, may be regarded as a major cause for concern, but it remains an issue which
is largely ignored or overlooked.108

12  Law Reform
English courts were traditionally reluctant to engage in reform of the law of evidence,
preferring to leave such matters to the legislature. This is well illustrated by the 1992 deci-
sion on hearsay of the House of Lords in R v Kearley109 (discussed in Chapter 11), in which
the majority, while deprecating the result they reached, felt nonetheless constrained
into reaching it by the law, which in their view could be changed only by Parliament.
Parliament acted only in 2003. In contrast, the courts in Canada and Australia have been
generally far more innovative and reformist in their approach to evidence doctrine. Some
references will be made in this book to developments in these countries.110
A new trend may, however, be emerging slowly in England and Wales. The Human
Rights Act 1998, discussed in Section 13, has caused the senior judiciary to take a more
principled and comparativist approach to the consideration of evidence doctrine than
was the case previously. The Criminal Cases Review Commission111 is also assuming an
increasingly important role in generating interesting case law from the Court of Appeal
on a variety of evidential issues. The Commission is an independent public body set up to
investigate suspected miscarriages of justice. It assesses whether convictions or sentences
should be referred to the Court of Appeal.
In England and Wales, legislation is occasionally passed which makes fundamental
changes to the law of evidence. Examples in recent years include the Criminal Justice
and Public Order Act 1994 (which changed the law in relation to the right to silence
at both the pre-trial and trial stages, and the law relating to corroboration), the Civil
Evidence Act 1995 (which effectively abolished the hearsay rule in civil proceedings), the
Youth Justice and Criminal Evidence Act 1999,112 and the Criminal Justice Act 2003.113

108  See, however, P Darbyshire, ‘An Essay on the Importance and Neglect of the Magistracy’ [1997]

Criminal Law Review 627.

109  [1992] 2 AC 228.
110  On the position in Canada see R J Currie, ‘The Evolution of the Law of Evidence: Plus Ça Change?’

(2011) 15 Canadian Criminal Law Review 213.

111  See generally K Kerrigan, ‘Miscarriage of Justice in the Magistrates’ Court: The Forgotten Power of

the Criminal Cases Review Commission’ [2006] Criminal Law Review 124; J Weeden, ‘The Criminal Cases
Review Commission (CCRC) of England, Wales, and Northern Ireland’ (2012) 80 University of Cincinnati
Law Review 1415; G Zellick, ‘The Criminal Cases Review Commission and the Court of Appeal:  The
Commission’s Perspective’ [2005] Criminal Law Review 937; G Zellick, ‘Facing up to Miscarriages of
Justice’ (2006) 31 Manitoba Law Journal 555.
112  See generally A Samuels, ‘New Law on Criminal Evidence’ (2000) 164 Justice of the Peace 857.
113  See generally E Cape, ‘Criminal Justice Act 2003—No Debate?’ [Jan 2004] Legal Action 6; B Gibson,

‘The Criminal Justice Act 2003—Part 2’ (2004) 168 Justice of the Peace 207; G Robson, ‘The Criminal Justice
Act 2003: A Possible Prognosis’ (2004) 168 Justice of the Peace 11.
24
Introduc tion

A  Royal Commission on Criminal Justice chaired by Lord Runciman recom-

mended in 1993 that the law of criminal evidence be subjected to a review by the
Law Commission.114 The Law Commission issued its reports on criminal hearsay,115
evidence of bad character,116 and expert evidence117 in 1997, 2001, and 2011 respec-
tively. A review of the operation of the criminal courts by Lord Justice Auld was pub-
lished in 2001.118 A cynic might note that recommendations made by such bodies as
the Runciman Royal Commission, the Law Commission, and Lord Justice Auld’s
review have tended to be accepted and implemented by the legislature only where
they had the potential to assist the prosecution by shoring up its armoury. Thus we
shall see, for example, that the recommendation by the Runciman Commission that
the right to silence at the pre-trial stage should not be watered down119 and the Law
Commission’s recommendation that the similar fact rule be effectively retained120 were
not accepted. On the other hand, Runciman’s recommendation that a corroboration or
supporting evidence requirement for confessions need not be introduced,121 the Law
Commission’s recommendation that the hearsay rule in criminal cases be substantially
liberalized,122 and the provisional thoughts expressed by Auld on the desirability of
allowing the freer admissibility of evidence of a defendant’s bad character123 have all
been accepted.
Finally, it is noteworthy that the Criminal Procedure Rules (which originally came into
force in 2005 and are now in their 2014 version) identify their ‘overriding objective’124
(and associated considerations) as follows:
THE OVERRIDING OBJECTIVE

1.1
(1) The overriding objective of this new code is that criminal cases be dealt with
justly.
(2) Dealing with a criminal case justly includes—
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the
European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them
informed of the progress of the case;

114  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 125, 126.
115  Law Commission (Law Com No 245), Evidence in Criminal Proceedings:  Hearsay and Related
Topics (1997).
116  Law Commission (Law Com No 273), Evidence of Bad Character in Criminal Proceedings (2001).
117  Law Commission (Law Com No 325), Expert Evidence in Criminal Proceedings in England and

Wales (2011).
118  Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001), accessible via http://

www.criminal-courts-review.org.uk/. See generally I Dennis, ‘The Auld Review—Part II’ [2002] Criminal
Law Review 1; J McEwan, M Redmayne, and Y Tinsley, ‘Evidence, Jury Trials and Witness Protection—The
Auld Review of the English Criminal Courts’ (2002) 6 International Journal of Evidence and Proof 163.
119  See Chapter 5.    120  See Chapter 10.    121  See Chapter 4.
122  See Chapter 11.    123  See Chapter 10.
124  See generally I Dennis, ‘Criminal Procedure Rules—An Update’ [2005] Criminal Law Review 335;

F Garland and J McEwan, ‘Embracing the Overriding Objective:  Difficulties and Dilemmas in the New
Criminal Climate’ (2012) 16 International Journal of Evidence and Proof 233; P Plowden, ‘Make Do and
Mend, or a Cultural Evolution?’ (2005) 155 New Law Journal 328.
L aw Reform 25

(e) dealing with the case efficiently and expeditiously;

(f) ensuring that appropriate information is available to the court when bail and
sentence are considered; and
(g) dealing with the case in ways that take into account—
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.
THE DUTY OF THE PARTICIPANTS IN A CRIMINAL CASE

1.2
(1) Each participant, in the conduct of each case, must—
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the
court; and
(c) at once inform the court and all parties of any significant failure (whether or
not that participant is responsible for that failure) to take any procedural step
required by these Rules, any practice direction or any direction of the court.
A failure is significant if it might hinder the court in furthering the overrid-
ing objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct
for the purposes of this rule.

THE APPLICATION BY THE COURT OF THE OVERRIDING OBJECTIVE

1.3 The court must further the overriding objective in particular when—

(a) exercising any power given to it by legislation (including these Rules);
(b) applying any practice direction; or
(c) interpreting any rule or practice direction.
In contrast with the piecemeal legislative reform being witnessed in England
and Wales,125 there has been legislative activity of a more fundamental nature in
Australia.126 On 18 April 1995, the Evidence Act 1995 (Commonwealth of Australia),
covering nearly all aspects of the law of evidence, came into force in the Australian
Federal jurisdiction, also applying, for several years, to the Australian Capital Territory.
It was expected that the Act would provide a model for similar legislation in other
Australian jurisdictions. Indeed, virtually identical statutes have been introduced in
New South Wales (Evidence Act 1995 (New South Wales)), Tasmania (Evidence Act
2001 (Tasmania)), Victoria (Evidence Act 2008 (Victoria)), the Australian Capital
Territory (Evidence Act 2011 (Australian Capital Territory)), and the Northern
Territory (Evidence (National Uniform Legislation) Act 2011 (Northern Territory)).
For convenience the Acts are commonly referred to as the ‘Uniform Evidence Acts’.

See generally I Dennis, ‘Codifying the Law of Criminal Evidence’ (2014) 35 Statute Law Review 107.
125 

See generally I Dennis, ‘Codification and Reform of Evidence Law in Australia’ [1996] Criminal Law
126 

Review 477.
26
Introduc tion

New Zealand now has a comprehensive piece of evidence legislation, the Evidence
Act 2006.

13  The Implications of the Human Rights Act 1998

The Human Rights Act 1998, which came fully into force on 2 October 2000, has the
effect of ‘incorporating’ the European Convention on Human Rights into domestic law
by making certain Convention rights directly enforceable in domestic courts.127 This
constitutes one of the most important developments in the English law of evidence, and
indeed English law, in the past few decades. Lord Hope of Craighead stated in R v DPP, ex
p Kebilene: ‘It is now plain that the incorporation of the European Convention on Human
Rights into our domestic law will subject the entire legal system to a fundamental process
of review and, where necessary, reform by the judiciary.’128
In very brief terms, the purport of the Human Rights Act is as follows. Despite
preserving the principle of Parliamentary sovereignty as far as primary legislation is
concerned,129 the Act provides that, in so far as it is possible to do so, all legislation must
be read and given effect in a way that is compatible with the Convention rights.130 If,
however, primary legislation cannot be read in a way that renders it compatible with the
Convention rights, the court must still apply it, but will be able, if it is a superior court,
to issue a declaration of incompatibility.131 Public authorities, including courts and tri-
bunals,132 are obliged to act in a way which is compatible with the Convention rights133
unless provisions in primary legislation require them to act differently.134 ‘A court or tri-
bunal determining a question which has arisen in connection with a Convention right
must take into account any . . . judgment [or] decision . . . of the European Court of Human
Rights . . . whenever made or given, so far as, in the opinion of the court or tribunal, it
is relevant to the proceedings in which that question has arisen.’135 Although such case
law is not binding on domestic courts, Lord Woolf CJ observed that ‘it would be most
unfortunate if the approach identified by the European Court of Human Rights and the
approach of [the Court of Appeal] continued to differ unless this is inevitable because of
provisions contained in this country’s legislation or the state of our case law’.136

127  See generally A Ashworth, ‘A Decade of Human Rights in Criminal Justice’ [2014] Criminal Law

Review 325; M Berger, ‘Self-Incrimination and the European Court of Human Rights: Procedural Issues
in the Enforcement of the Right to Silence’ [2007] European Human Rights Law Review 514; A L-T Choo
and S Nash, ‘Evidence Law in England and Wales:  The Impact of the Human Rights Act 1998’ (2003)
7 International Journal of Evidence and Proof 31 (on which I  have drawn in the paragraphs that fol-
low); D Friedman, ‘From Due Deference to Due Process: Human Rights Litigation in the Criminal Law’
[2002] European Human Rights Law Review 216; J D Jackson, ‘The Effect of Human Rights on Criminal
Evidentiary Processes: Towards Convergence, Divergence or Realignment?’ (2005) 68 Modern Law Review
737; P Mirfield, ‘Silence, Innocence and Human Rights’ in P Mirfield and R Smith (eds), Essays for Colin
Tapper (2003); C Ovey, ‘The European Convention on Human Rights and the Criminal Lawyer:  An
Introduction’ [1998] Criminal Law Review 4; S Sharpe, ‘The European Convention: A Suspects’ Charter?’
[1997] Criminal Law Review 848; B Emmerson, A  Ashworth, and A  Macdonald, Human Rights and
Criminal Justice (3rd ed 2012).
128  [1999] 3 WLR 972, 988. 129  S 3(2)(b). 130  S 3(1).
131  S 4(2). The superior courts are the Supreme Court; the Judicial Committee of the Privy Council;

the Court Martial Appeal Court; the High Court of Justiciary in Scotland; the High Court or Court
of Appeal in England and Wales or Northern Ireland; and (in specified circumstances) the Court of
Protection. See s 4(5).
132  S 6(3)(a). 133  S 6(1). 134  S 6(2). 135  S 2(1)(a).
136  R v Togher [2001] 3 All ER 463, 472.
Organiz ation of the Book 27

As we shall see in the course of this book, one of the major current debates concerns
the extent to which criminal evidence doctrine has been reshaped by Article 6 of the
European Convention on Human Rights, which guarantees137 the right to a fair trial.138
While many judges stress that the concept of a fair trial has long been an integral part
of the law and practice of the United Kingdom,139 some have recognized that in giving
the Human Rights Act its full effect ‘long or well entrenched ideas may have to be put
aside, [and] sacred cows culled’.140 It is noteworthy that, although the Act requires courts
to have regard to judgments of the European Court of Human Rights where appropri-
ate, that Court has stressed on several occasions that, in determining whether Article 6
has been breached, it will not concern itself directly with the principle(s) of evidence at
issue: ‘While Article 6 of the Convention guarantees the right to a fair trial, it does not lay
down any rules on the admissibility of evidence as such, which is therefore primarily a
matter for regulation under national law.’141
Other specific rights guaranteed by Article 6, all of which are closely allied to the right
to a fair trial, include the rights of a person charged with a criminal offence:
• ‘[to] be presumed innocent until proved guilty according to law’;142
• ‘to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him’;143
• ‘to have adequate time and facilities for the preparation of his defence’;144
• ‘to defend himself in person or through legal assistance of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the interests
of justice so require’;145
• ‘to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against
him’;146 and
• ‘to have the free assistance of an interpreter if he cannot understand or speak the lan-
guage used in court’.147

14  Organization of the Book

The order of the rest of the book is as follows. Chapter 2 examines how it is to be deter-
mined which party bears the burden of proving a particular issue in a trial, and to what
standard the burden of proving a particular issue requires to be discharged. This is fol-
lowed by a consideration of the principles governing the course of evidence in a trial in
Chapter 3. Chapters 4 to 7 are concerned, broadly speaking, with topics that highlight
the relationship between the principles of evidence and pre-trial procedures. Chapters 8

137  In Art 6(1).
138  See generally D Mathieson, ‘Fair Criminal Trial and the Exclusion of “Unfair Evidence”’ (2013) 25
New Zealand Universities Law Review 739; Amnesty International, Fair Trial Manual (2nd ed 2014); R Goss,
Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights (2014); P Leanza and O
Pridal, The Right to a Fair Trial: Article 6 of the European Convention on Human Rights (2014).
139  R v Togher [2001] 3 All ER 463, 472.
140  R v Lambert [2001] UKHL 37, [2001] 3 WLR 206 at [6]‌.
141  Schenk v Switzerland (1988) 13 EHRR 242 at [46]. The Court has reiterated its position in several

subsequent cases.
142  Art 6(2). 143  Art 6(3)(a). 144  Art 6(3)(b). 145  Art 6(3)(c).
146  Art 6(3)(d). 147  Art 6(3)(e).
28
Introduc tion

and 9 examine two doctrines which allow a party to refrain from disclosing or giving
evidence of material, not on the basis of its actual or potential unreliability, but because
of considerations of extrinsic policy. These are, respectively, the doctrines of public inter-
est immunity and legal professional privilege. The following two chapters, Chapters 10
and 11, are concerned, respectively, with evidential topics of fundamental importance
that have been radically affected in the criminal context by the Criminal Justice Act
2003: character evidence and hearsay evidence. Chapter 12 deals with expert evidence, a
topic that continues to generate considerable controversy. A number of issues pertaining
to witnesses are considered in Chapter 13. Chapter 14 considers a number of ‘shortcuts’
employed by the law of evidence.
2
Burden and Standard of Proof

This chapter is divided into two parts. The first part is concerned with the manner in
which a dispute as to which party bears the burden of proving a particular issue in a trial
should be resolved. The question may arise in a criminal trial as to whether it is the pros-
ecution or defence which bears the burden of proving a certain issue, and in a civil trial
as to whether it is the claimant or defendant who bears the burden of proving a certain
issue. Another question which may arise concerns the standard to which the burden of
proving a particular issue requires to be discharged. This is the subject of the second part
of the chapter.

1  Burden of Proof
1.1  The Legal Burden and the Evidential Burden
The legal burden of proof is the probative burden, and relates to the duty of a party to prove
a particular fact to the trier of fact by the end of the trial. Failure to discharge this burden
means that the issue will be decided in favour of the other party. The legal burden of proof,
which is most commonly known simply as the ‘burden of proof’,1 is therefore the final, or
ultimate, burden of proving a particular fact.2 The evidential burden of proof, by contrast,
is merely a provisional burden.3 It relates to the duty of a party to make a matter a ‘live
issue’ at the trial—in other words, to adduce sufficient evidence of a particular issue to
satisfy the judge that the issue should be left to the trier of fact for its consideration. As the
Supreme Court of Canada has explained:
An ‘evidential burden’ is not a burden of proof. It determines whether an issue should be
left to the trier of fact, while the ‘persuasive burden’ determines how the issue should be
decided.
These are fundamentally different questions. The first is a matter of law; the sec-
ond, a question of fact. Accordingly, on a trial before judge and jury, the judge decides
whether the evidential burden has been met. In answering that question, the judge
does not evaluate the quality, weight or reliability of the evidence. The judge simply

1  It is also known as the ‘risk of non-persuasion’, the ‘fixed burden of proof’, and the ‘persuasive burden’.
2  See generally S Wexler, ‘Burden of Proof, Writ Large’ (1999) 33 University of British Columbia Law
Review 75.
3  It is also known as the ‘burden of adducing evidence’ and the ‘burden of passing the judge’. See gener-

ally R Glover, ‘Codifying the Law on Evidential Burdens’ (2008) 72 Journal of Criminal Law 305.
30
Burden and S tandard of Proof

decides whether there is evidence upon which a properly instructed jury could reason-
ably decide the issue.4

1.2  Incidence of Legal Burden

1.2.1  Criminal Trials
1.2.1.1 The Woolmington Rule
In Woolmington v DPP, the House of Lords had to consider the summing-up by a trial
judge to the effect that if, on a charge of murder, the prosecution satisfied the jury that the
defendant had caused the victim’s death, and the defendant wished to argue that it was a
pure accident, then the defence bore the legal burden of proving this. It would appear that
some earlier authorities had suggested that this represented the law. The House of Lords
held, however, that inasmuch as they suggested this, those authorities were incorrect.
Viscount Sankey LC stated:
Throughout the web of the English Criminal Law one golden thread is always to be seen,
that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have
already said as to the defence of insanity and subject also to any statutory exception.5
In a criminal trial, then, the prosecution generally bears the legal burden of proving every
issue. In general, therefore, actus reus, mens rea, and the lack of a defence must all be
proved by the prosecution. This reflects the principle of the presumption of innocence.6
In a criminal trial, the might of a ‘strong’ state is ranged against a ‘weak’ individual.
If a conviction results, serious consequences may flow from this, including the possible
deprivation of liberty. It is appropriate, therefore, for the prosecution to have to prove the
defendant’s guilt, rather than for the defendant to have to prove his or her own innocence.
Roberts has identified three broad reasons for the presumption of innocence.7 First, to
place the burden of proof in relation to a particular issue on the defence would mean that
the trier of fact must convict if it remains undecided about facts material to that issue.
Secondly, ‘for as long as criminal proceedings are initiated and structured by the prosecu-
tor’s presentation of a prima facie case to answer on specified charges—as opposed, say,
to requiring each of us to undergo monthly confessionals before an inquisitor—placing
the burden of proof on a defendant will often deprive him of a fair opportunity to answer
the allegations against him’. Finally, in most cases, the investigative resources to which
the prosecution has access are greatly superior to those to which the defence has access.
The ‘Woolmington rule’ is, however, subject to two broad exceptions. First, an accused
who raises insanity or insane automatism as a defence (or who argues unfitness to plead)
bears the legal burden of proving it. What have become known as the M’Naghten rules
were promulgated in M’Naghten’s Case:
we have to submit our opinion to be, that the jurors ought to be told in all cases that every
man is to be presumed to be sane, and to possess a sufficient degree of reason to be respon-
sible for his crimes, until the contrary be proved to their satisfaction; and that to establish

4  R v Fontaine [2004] 1 SCR 702 at [11]–[12] (underlining in original). See generally D Stuart, ‘Fontaine:

Lowering the Bar for Evidentiary Burdens for Defences to Be Put to Juries’ (2004) 18 Criminal Reports (6th)
238. See also the decision of the High Court of Australia in R v Khazaal [2012] HCA 26.
5  [1935] AC 462, 481.
6  See generally H L Ho, ‘The Presumption of Innocence as a Human Right’ in P Roberts and J Hunter

(eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (2012); V
Tadros, ‘Rethinking the Presumption of Innocence’ (2007) 1 Criminal Law and Philosophy 193.
7  P Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Criminal Law Review 783, 785–7.
Burden of Proof 31

a defence on the ground of insanity, it must be clearly proved that, at the time of the com-
mitting of the act, the party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act he was doing; or, if he
did know it, that he did not know he was doing what was wrong.8
The Supreme Court of Canada has held that the presumption of sanity embodied in the
Canadian Criminal Code violated the presumption of innocence guaranteed by section
11(d) of the Canadian Charter of Rights and Freedoms, but that the placing of the legal
burden on the accused constituted a reasonable limit within the meaning of section 19 of
the Charter.10 A number of arguments have been advanced to justify treating the defence
of insanity differently from the other common law defences in English law where burden
of proof is concerned. It has been argued, for example, that, there being a presumption
of sanity (as made clear in M’Naghten itself), it must be for the accused to prove his or
her insanity. This, however, is a non sequitur. All the word ‘presumption’ means in this
context is that insanity will not be an issue in a trial until the evidential burden in relation
to the issue is discharged—that is, until sufficient evidence is adduced to make it a ‘live
issue’. In this sense, there is surely equally a ‘presumption’ that the accused was not act-
ing in self-defence, under duress, as a result of loss of control, or in a state of non-insane
automatism, yet the legal burden of proof in relation to these defences lies on the prosecu-
tion. Secondly, it has been argued that to place the legal burden on the prosecution would
be to impose a burden which would be very difficult to discharge, thus making it easy for
the defence to make false claims of insanity. Again, however, there are other common law
defences in relation to which the prosecution bears legal burdens which may be similarly
difficult to discharge. Thirdly, it is said that to place the legal burden on the defence would
not cause unfairness, since insanity is a matter which would be peculiarly within the
knowledge of the accused. But so is mens rea, which must be proved by the prosecution.11
Where an accused charged with murder raises the defence either of insanity or of
diminished responsibility, section 6 of the Criminal Procedure (Insanity) Act 1964 per-
mits the prosecution to adduce evidence to prove the other defence. In this situation, the
legal burden of proof falls on the prosecution. In a similar vein, section 4 of the same Act
allows the issue of unfitness to plead and stand trial to be raised either by the defence or
by the prosecution, and, where raised by the prosecution, the legal burden of proving the
issue falls on the prosecution.12
The second broad exception to the Woolmington rule arises where a statutory provision
places the legal burden of proving a particular issue on the defendant. As Ashworth and
Blake found in their empirical study, there is no shortage of examples of legislation which
places the legal burden of proving particular issues on the defendant. They remark:
It is a fair conclusion from the evidence presented here that many of those who prepare,
draft and enact criminal legislation for England and Wales either fail to recognise these

8  (1843) 10 Cl & F 200, 210; 8 ER 718, 722 (italics added).

9 ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.’
10  R v Chaulk (1990) 62 CCC (3d) 193. See also, in the USA, Clark v Arizona 548 US 735 (2006) (see gener-

ally ‘Required Scope of Insanity Defense’ (2006) 120 Harvard Law Review 223).
11  For a much fuller discussion of these, and related, issues, see T H Jones, ‘Insanity, Automatism, and

the Burden of Proof on the Accused’ (1995) 111 Law Quarterly Review 475. See also T H Jones, ‘Insanity
and the Burden of Proof on the Accused: A Human Rights Approach’ in J F Nijboer and J M Reijntjes (eds),
Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (1997).
12  R v Robertson [1968] 1 WLR 1767.
32
Burden and S tandard of Proof

violations of the presumption of innocence, or disagree with the presumption of innocence

or its application in this sphere, or fail to appreciate what can be achieved by placing only
an evidential burden (rather than the legal burden) on defendants in respect of defences.13

1.2.1.2  Express Statutory Exceptions

Reverse-Onus Provisions
On occasion, the legal burden of proving a particular exculpatory issue is placed expressly
on the defendant by statute. Such statutory provisions state expressly that it is for the
defendant to prove or show the matter in question.

The Effect of the Human Rights Act 1998

One of the major debates in the law of evidence has concerned the extent to which
reverse-onus clauses in statutory provisions may conflict with Article 6(2) of the European
Convention on Human Rights.14 Assessing this necessitates examination of the effect of
the Human Rights Act 1998.15 In addressing the question the courts have made skilful use
of section 3 of the Human Rights Act 1998, which provides: ‘(1) So far as it is possible to do
so, primary legislation and subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights.’ In their quest to avoid making a declara-
tion of incompatibility under section 4, the courts have been prepared, using section 3, to
‘read down’ legislation in a manner that has not proved uncontroversial.
European Court jurisprudence establishes that Article 6(2), which provides that every­
one charged with a criminal offence shall be presumed innocent until proven guilty,
is not an absolute and unqualified right. Presumptions of fact and law are permissible
provided that they are confined within reasonable limits and strike a fair balance between
the interests of the community and the rights of the individual.16 Thus in appropriate
circumstances criminal statutes can transfer the burden of proof to the accused without
violating the presumption of innocence. The dilemma for English courts17 is whether, and
in what circumstances, it is justifiable and proportionate to impose not only an evidential
but also a legal burden on the accused.
In R v DPP, ex p Kebilene18 the House of Lords did not accept the Divisional Court’s
observation that reverse-onus provisions in section 16A of the Prevention of Terrorism

13  A Ashworth and M Blake, ‘The Presumption of Innocence in English Criminal Law’ [1996] Criminal

Law Review 306, 315.

14  For a discussion of some of the earlier developments see A L-T Choo and S Nash, ‘Evidence Law in

England and Wales: The Impact of the Human Rights Act 1998’ (2003) 7 International Journal of Evidence
and Proof 31, 56–60 (on which I have drawn in this section); V Tadros and S Tierney, ‘The Presumption of
Innocence and the Human Rights Act’ (2004) 67 Modern Law Review 402.
15  See generally P Bogan, ‘The Reverse Burden of Proof—How Frayed is the Golden Thread?’ [2009]

4 Criminal Bar Quarterly 5.

16  Salabiaku v France (1988) 13 EHRR 379; Hoang v France (1992) 16 EHRR 53; Telfner v Austria (2001)

34 EHRR 7; Janosevic v Sweden (2002) 38 EHRR 22; Västberga Taxi Aktiebolag v Sweden, Application no
36985/97, 23 July 2002.
17  For discussions of English law prior to the Human Rights Act 1998, see A Ashworth and M Blake, ‘The

Presumption of Innocence in English Criminal Law’ [1996] Criminal Law Review 306; D J Birch, ‘Hunting the
Snark: The Elusive Statutory Exception’ [1988] Criminal Law Review 221; P Mirfield, ‘An Ungrateful Reply’
[1988] Criminal Law Review 233; P Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Criminal Law Review
783; A A S Zuckerman, ‘The Third Exception to the Woolmington Rule’ (1976) 92 Law Quarterly Review 402.
18  [1999] 3 WLR 972. See generally I Hare, ‘Placing the Onus Back on the Trial’ [2000] Cambridge Law Journal

1; P Lewis, ‘The Human Rights Act 1998: Shifting the Burden’ [2000] Criminal Law Review 667; P Roberts, ‘The
Presumption of Innocence Brought Home? Kebilene Deconstructed’ (2002) 118 Law Quarterly Review 41.
Burden of Proof 33

(Temporary Provisions) Act 1989 would inevitably lead to a finding of incompatibility

with the Convention. Noting that Convention case law indicated that each case should
be examined on its merits, Lord Hobhouse of Woodborough accepted that in appropriate
circumstances a reverse-onus provision could be justified even though it appeared ‘on its
face’ to be contrary to the Convention.19 Lord Hope of Craighead emphasized the impor-
tance of achieving an appropriate balance between competing interests and observed that
Article 6(2)
is not regarded as imposing an absolute prohibition on reverse onus clauses, whether
they [create] presumptions of fact . . . or . . . presumptions of law . . . In each case the
question will be whether the presumption is within reasonable limits. 20
In R v Lambert, 21 however, the majority of the House of Lords took the view that
interpreting reverse-onus provisions as imposing more than an evidential burden on
the accused would require a high level of justification to be Convention-compliant.
Following his conviction for a drugs offence under section 5(3) of the Misuse of Drugs
Act 1971, the appellant submitted that reverse-onus provisions in this statute were
incompatible with Article 6(2). Under section 28 of the 1971 Act, a person found in pos-
session of a controlled drug was required to ‘prove’ that he or she did not know that it
was a controlled drug. Lambert argued that requiring him to prove lack of knowledge
was inconsistent with the presumption of innocence. Although this case was primarily
concerned with the retrospective application of the Human Rights Act 1998, the House
went on to consider the interpretation of reverse-onus clauses. The majority considered
in the context of this case that placing the persuasive burden on the accused was dis-
proportionate and unjustified and would be inconsistent with Article 6(2). Lord Steyn
observed 22 that the principle of proportionality required the House to assess whether
there was a ‘pressing necessity to impose a legal rather than evidential burden on the
accused’. He expressed concern that imposing a persuasive burden could lead to a
conviction even though the jury considered it reasonably possible that the defendant
had been ‘duped’. Noting that a guilty verdict could result in life imprisonment, he
considered that
the transfer of the legal burden in section 28 does not satisfy the criterion of propor-
tionality. Viewed in its place in the current legal system section 28 of the 1971 Act is
a disproportionate reaction to perceived difficulties facing the prosecution in drugs
cases. 23
Notwithstanding the public interest in combating drug trafficking, Lord Clyde was also
concerned that a consequence of imposing the legal burden on the accused was that
it would be possible for an accused person to be convicted where the jury believed
he might well be innocent but have not been persuaded that he probably did not
know the nature of what he possessed. The jury may have a reasonable doubt as to
his guilt in respect of his knowledge of the nature of what he possessed but still be
required to convict. Looking to the potentially serious consequences of a conviction

19  [1999] 3 WLR 972, 1009. 20  [1999] 3 WLR 972, 997.

21  [2001] UKHL 37, [2001] 3 WLR 206. See generally G Dingwall, ‘Statutory Exceptions, Burdens of
Proof and the Human Rights Act 1998’ (2002) 65 Modern Law Review 450; P Roberts, ‘Drug Dealing and
the Presumption of Innocence: The Human Rights Act (Almost) Bites’ (2002) 6 International Journal of
Evidence and Proof 17; P Tain, ‘Transferred Burden’ (2001) 145 Solicitors’ Journal 855.
22  [2001] UKHL 37, [2001] 3 WLR 206 at [38]. 23  [2001] UKHL 37, [2001] 3 WLR 206 at [41].
34
Burden and S tandard of Proof

at least in respect of class A  drugs it does not seem to me that such a burden is
acceptable. 24
Disagreeing with the other Law Lords, Lord Hutton considered that the social threat
posed by drugs was sufficiently grave to justify the imposition of a persuasive burden.25
Applying section 3 of the Human Rights Act 1998, the majority of the House of Lords
was satisfied that a conflict with the Convention could be avoided by reading down
section 28, a task that could be achieved ‘without doing violence to the language or to the
objective of that section’.26 Thus, references to ‘prove’ and ‘proves’ in this provision should
be construed as meaning ‘giving sufficient evidence’, thereby imposing only an evidential
burden on the accused and not a persuasive one.27
The House of Lords returned to the issue of reverse-onus provisions in R v Johnstone,28
in the context of section 92(5) of the Trade Marks Act 1994, which provided that it
was a defence to a charge under section 92 of the Act for the defendant ‘to show that
he believed on reasonable grounds that the use of the sign in the manner in which it
was used, or was to be used, was not an infringement of the registered trade mark’.29
Lord Nicholls of Birkenhead, with whom the other Law Lords agreed on this point,
remarked:
I turn to section 92. (1) Counterfeiting is fraudulent trading. It is a serious contempo-
rary problem. Counterfeiting has adverse economic effects on genuine trade. It also
has adverse effects on consumers, in terms of quality of goods and, sometimes, on the
health or safety of consumers. . . . Urgent steps are needed to combat counterfeiting and
piracy . . . Protection of consumers and honest manufacturers and traders from coun-
terfeiting is an important policy consideration. (2) The offences created by section 92
have rightly been described as offences of ‘near absolute liability’. The prosecution is
not required to prove intent to infringe a registered trade mark. (3) The offences attract
a serious level of punishment: a maximum penalty on indictment of an unlimited fine
or imprisonment for up to 10 years or both, together with the possibility of confisca-
tion and deprivation orders. (4) Those who trade in brand products are aware of the
need to be on guard against counterfeit goods. They are aware of the need to deal with
reputable suppliers and keep records and of the risks they take if they do not. (5) The
section 92(5) defence relates to facts within the accused person’s own knowledge: his
state of mind, and the reasons why he held the belief in question. His sources of sup-
ply are known to him. (6) Conversely, by and large it is to be expected that those who
supply traders with counterfeit products, if traceable at all by outside investigators, are
unlikely to be co-operative. So, in practice, if the prosecution must prove that a trader
acted dishonestly, fewer investigations will be undertaken and fewer prosecutions will
take place.
In my view factors (4) and (6) constitute compelling reasons why the section 92(5)
defence should place a persuasive burden on the accused person. Taking all the factors
mentioned above into account, these reasons justify the loss of protection which will be
suffered by the individual. Given the importance and difficulty of combating counter-
feiting, and given the comparative ease with which an accused can raise an issue about
his honesty, overall it is fair and reasonable to require a trader, should need arise, to

24  [2001] UKHL 37, [2001] 3 WLR 206 at [156].

25  [2001] UKHL 37, [2001] 3 WLR 206 at [198].
26  [2001] UKHL 37, [2001] 3 WLR 206 at [17] per Lord Slynn of Hadley.
27  [2001] UKHL 37, [2001] 3 WLR 206 at [42] per Lord Steyn. Lambert was followed by the Court of

Appeal in R v Carrera [2002] EWCA Crim 2527.

28  [2003] UKHL 28, [2003] 1 WLR 1736. 29  Italics added.
Burden of Proof 35

prove on the balance of probability that he honestly and reasonably believed the goods
were genuine. 30
The decision in late 2004 of the House of Lords in Sheldrake v DPP; A-G’s Reference (No 4
of 2002)31 may be regarded as providing for the time being the most authoritative judicial
consideration of the relevant legal principles. This decision involved two conjoined cases.
Sheldrake concerned section 5(2) of the Road Traffic Act 1988, which provided a defence
to a charge, under section 5(1)(b), of being in charge of a motor vehicle after consuming
excess alcohol. Under section 5(2), it would be a defence to prove that the circumstances at
the time were such that there was no likelihood of the vehicle being driven whilst the pro-
portion of alcohol remained likely to exceed the prescribed limit. The House of Lords held
unanimously that section 5(2) should not be read down. In the words of Lord Bingham
of Cornhill:
It may not be very profitable to debate whether section 5(2) infringes the presumption of
innocence. It may be assumed that it does. Plainly the provision is directed to a legitimate
object: the prevention of death, injury and damage caused by unfit drivers. Does the pro-
vision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my
view, it plainly does. I do not regard the burden placed on the defendant as beyond rea-
sonable limits or in any way arbitrary. It is not objectionable to criminalise a defendant’s
conduct in these circumstances without requiring a prosecutor to prove criminal intent.
The defendant has a full opportunity to show that there was no likelihood of his driving, a
matter so closely conditioned by his own knowledge and state of mind at the material time
as to make it much more appropriate for him to prove on the balance of probabilities that
he would not have been likely to drive than for the prosecutor to prove, beyond reasonable
doubt, that he would. I do not think that imposition of a legal burden went beyond what
was necessary. If a driver tries and fails to establish a defence under section 5(2), I would
not regard the resulting conviction as unfair . . .32
A-G’s Reference (No 4 of 2002) concerned section 11(2) of the Terrorism Act 2000, which
provided a defence to a charge, under section 11(1), of belonging or professing to belong
to a proscribed organization. Under section 11(2), it would be a defence to prove that
(a) the organization was not proscribed when the defendant became a member or began
to profess being a member, and (b) he or she did not take part in the activities of the
organization at any time while it was proscribed. The majority of the House of Lords held,
for the following reasons, that ‘section 11(2) of the Act should be read and given effect as
imposing on the defendant an evidential burden only’:33
(1) a person who is innocent of any blameworthy or properly criminal conduct may fall
within section 11(1). There would be a clear breach of the presumption of innocence,
and a real risk of unfair conviction, if such persons could exonerate themselves only
by establishing the defence provided on the balance of probabilities. It is the clear

30  [2003] UKHL 28, [2003] 1 WLR 1736 at [52]–[53]. Applied by the House of Lords in R v Chargot Ltd

(trading as Contract Services) [2008] UKHL 73, [2009] 1 WLR 1.

31  [2004] UKHL 43, [2004] 3 WLR 976. See generally P W Ferguson, ‘Proof of Innocence’ [2004] Scots

Law Times 223; R Glover, ‘Sheldrake: Regulatory Offences and Reverse Legal Burdens of Proof’ [2006] 4
Web Journal of Current Legal Issues; J Hodivala, ‘Lost Innocence’ (2004) 148 Solicitors’ Journal 1336; N
Padfield, ‘The Burden of Proof Unresolved’ [2005] Cambridge Law Journal 17; D Rhodes, ‘Life in Crime’
(2004) 148 Solicitors’ Journal 1307; J R Spencer, ‘Attorney-General’s Reference (No 4 of 2002) and Sheldrake
v DPP [2004] 3 WLR 976’ [2004] 9 Archbold News 5; C Wells, ‘Reversing the Burden’ (2005) 155 New Law
Journal 183.
32  [2004] UKHL 43, [2004] 3 WLR 976 at [41]. 33  [2004] UKHL 43, [2004] 3 WLR 976 at [53].
36
Burden and S tandard of Proof

duty of the courts, entrusted to them by Parliament, to protect defendants against

such a risk. It is relevant to note that a defendant who tried and failed to establish
a defence under section 11(2) might in effect be convicted on the basis of conduct
which was not criminal at the date of commission.
(2) While a defendant might reasonably be expected to show that the organisation was
not proscribed on the last or only occasion on which he became a member or pro-
fessed to be a member, so as to satisfy subsection (2)(a), it might well be all but impos-
sible for him to show that he had not taken part in the activities of the organisation at
any time while it was proscribed, so as to satisfy subsection (2)(b). Terrorist organi-
sations do not generate minutes, records or documents on which he could rely. Other
members would for obvious reasons be unlikely to come forward and testify on his
behalf. If the defendant’s involvement . . . had been abroad, any evidence might also
be abroad and hard to adduce. While the defendant himself could assert that he had
been inactive, his evidence might well be discounted as unreliable. . . . Thus although
section 11(2) preserves the rights of the defence, those rights would be very hard to
exercise effectively.
(3) If section 11(2) were held to impose a legal burden, the court would retain a power
to assess the evidence, on which it would have to exercise a judgment. But the sub-
section would provide no flexibility and there would be no room for the exercise of
discretion. If the defendant failed to prove the matters specified in subsection (2), the
court would have no choice but to convict him.
(4) The potential consequence for a defendant of failing to establish a subsection
(2) defence is severe: imprisonment for up to ten years.
(5) While security considerations must always carry weight, they do not absolve mem-
ber states from their duty to ensure that basic standards of fairness are observed.
(6) Little significance can be attached to the requirement in section 117 of the Act that
the Director of Public Prosecutions give his consent to a prosecution . . .34
The omission of section 11(2) from the provisions deemed by section 118(2) of the Act to be
subject to an evidential burden of proof was regarded as irrelevant: section 11(2) ‘should
be treated as if section 118(2) applied to it. Such was not the intention of Parliament when
enacting the 2000 Act, but it was the intention of Parliament when enacting section 3 of
the 1998 Act.’35
The difficulties inherent in an approach involving case-by-case determinations
of whether section 3 should be used to ‘read down’ statutory provisions requiring the
defendant to ‘prove’ or ‘show’ an issue are obvious. Lord Nicholls of Birkenhead acknowl-
edges openly: ‘Identifying the requirements of a reasonable balance is not as easy as might
seem. One is seeking to balance incommensurables.’36 The result is that decisions in rela-
tion to particular statutory provisions can ‘resemble a forensic lottery’.37 Nonetheless,
the acknowledgement that it is possible in the post-Human Rights Act era for such words
to be ‘read down’ represents a major advance in the law. Any prospect of a substantial

34  [2004] UKHL 43, [2004] 3 WLR 976 at [51]. 35  [2004] UKHL 43, [2004] 3 WLR 976 at [53].
36  R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736 at [49].
37  I Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Criminal

Law Review 901, 927. Cf D Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’
[2007] Cambridge Law Journal 142, who seeks to ‘provide . . . a framework that reconciles seemingly incon-
sistent decisions, and that should provide greater predictability for future cases’ ([2007] Cambridge Law
Journal 142, 171).
Burden of Proof 37

reduction in the uncertainty and lack of predictive value of the current approach has
not, however, materialized notwithstanding successive considerations of the issue by the
House of Lords. As Ashworth has noted in his commentary on Sheldrake v DPP; A-G’s
Reference (No 4 of 2002): ‘The least satisfactory aspect of this decision is that it furnishes
courts with no clear guidance on how to interpret statutes that impose a burden of proof
on the defendant.’38 Indeed, it can be said that the decision of the House in relation to
A-G’s Reference (No 4 of 2002) has served to bring the problem of uncertainty and unpre-
dictability into even sharper focus. The decision of the House in this case was reached by
a slender 3:2 majority, with the two dissenting Law Lords agreeing with the conclusion
of the Court of Appeal that the provision should not be ‘read down’. Of the total of eight
appellate judges who considered the case, therefore, only three reached the conclusion
that ultimately prevailed.
At issue in R v Williams (Orette)39 was the provision in section 1(5) of the Firearms Act
1982 that, in certain proceedings for an offence under the Firearms Act 1968 involving
an imitation firearm, ‘it shall be a defence for the accused to show that he did not know
and had no reason to suspect that the imitation firearm was so constructed or adapted as
to be readily convertible into a firearm to which section 1 of [the 1968] Act applies’. The
Court of Appeal held:
In our judgment, there are compelling reasons for concluding that section 1(5) imposes a
legal burden on the defendant.
Firearms offences—any firearms offences—are a very serious problem. Where those
firearms stand to be lethal—as in the case of readily convertible imitation firearms—the
need for protection of the public is obvious. That is reflected by the (legitimate) creation
of a number of strict liability offences in this context. . . . In circumstances where, never-
theless, Parliament has, by section 1(5) of the 1982 Act, considered it appropriate that a
defence of lack of knowledge or reason to suspect in such cases be available it is, in our
judgment, justified and proportionate that the legal burden of such defence—a defence
made available as an exception or modification to the strict liability approach—be placed
on the accused.
Further, the question of knowledge (or lack of it) involves facts readily available to
the accused—he knows the circumstances in which and from whom he obtained the
item. Likewise as to the issue of whether he ‘had no reason to suspect’ that the imitation
firearm was so constructed or adapted as to be readily convertible. No great difficulty
is placed in the way of a defendant in that regard. On the other hand, it could be very
difficult indeed for prosecutors, and would be a real deterrent to prosecution let alone
successful prosecution, if the burden were placed on the Crown to obtain the neces-
sary evidence to disprove a case that the accused had neither knowledge nor reason to
suspect.
Moreover, if the prosecution have first proved to the criminal standard that a person
was (in fact) in possession of an imitation firearm which was (in fact) readily convertible
into a lethal firearm, that is a scenario sufficiently out of the norm such that there is no
obvious unfairness or unreasonableness in then requiring the possessor to, as it were,
justify himself for possessing such an item.

38  A J Ashworth, Commentary at [2005] Criminal Law Review 219. See also J R Spencer, ‘Attorney-General’s

Reference (No 4 of 2002) and Sheldrake v DPP [2004] 3 WLR 976’ [2004] 9 Archbold News 5, 6: ‘The law that
results from the majority decision in this case is clearer than before: but regrettably, the legal waters are
still a little murky. Although the majority said that the maximum penalty is a relevant factor, they seem to
accept that “reverse burdens” can properly apply in at least some cases where the penalty is heavy.’
39  [2012] EWCA Crim 2162, [2013] 1 WLR 1200.
38
Burden and S tandard of Proof

That the maximum sentence is (no more than) ten years is also at least consistent with
a conclusion that the imposition of a legal reverse burden is, striking the balance, to be
justified as a necessary, reasonable and proportionate derogation of the presumption of
innocence. And that is our conclusion.40
In the final analysis, the most appropriate solution to the problem of reverse-onus provi-
sions may well be that encapsulated in the following comment by Padfield:
The time has come for a category of ‘administrative regulations’ which would carry little
stigma and no possibility of imprisonment. Only for such ‘non-crimes’ should . . . reverse
burdens be acceptable.41
In a similar vein, Glover has argued for a rebuttable presumption that a reverse onus
would be justified in the case of a regulatory offence. ‘According to this approach an
offence could be defined as regulatory if a defendant voluntarily engaged in a lawful activ-
ity that presented a serious risk or danger to public health and safety.’42

1.2.1.3  Implied Statutory Exceptions

In summary trials, the issue of how it is to be determined whether the legislature has
impliedly placed the legal burden of proof in relation to a particular issue on the defend-
ant is governed by section 101 of the Magistrates’ Courts Act 1980 (formerly section 81 of
the Magistrates’ Courts Act 1952):
Where the defendant to an information or complaint relies for his defence on any excep-
tion, exemption, proviso, excuse or qualification, whether or not it accompanies the
description of the offence or matter of complaint in the enactment creating the offence
or on which the complaint is founded, the burden of proving the exception, exemption,
proviso, excuse or qualification shall be on him; and this notwithstanding that the infor-
mation or complaint contains an allegation negativing the exception, exemption, proviso,
excuse or qualification.
The crucial issue, therefore, is to determine whether the defendant is relying for his or
her defence on an exception, exemption, proviso, excuse, or qualification. If so, then the
legal burden of proof in relation to the particular issue falls on the defendant. Whether
the wording of the provision is such that the exception, exemption, proviso, excuse, or
qualification accompanies the description of the offence is irrelevant. It is clear that in
trials on indictment, too, legal burdens may be placed on the defence impliedly as well as
expressly.43 Section 101 has been held to encapsulate the common law, and, accordingly,
the same approach to determining whether the legislature has impliedly placed the legal
burden of proof in relation to a particular issue on the defendant is to be taken in trials on
indictment as is taken in summary trials.

40  [2012] EWCA Crim 2162, [2013] 1 WLR 1200 at [40]–[44]. See also R v Makuwa [2006] EWCA Crim

175, [2006] 1 WLR 2755; R v Keogh [2007] EWCA Crim 528, [2007] 1 WLR 1500 (on which see generally R
Glover, ‘Pause for Thought’ (2007) 157 New Law Journal 1344); R v Webster [2010] EWCA Crim 2819, [2011]
1 Cr App R 16.
41  N Padfield, ‘The Burden of Proof Unresolved’ [2005] Cambridge Law Journal 17, 19–20.
42  R Glover, ‘Regulatory Offences and Reverse Burdens: The “Licensing Approach”’ (2007) 71 Journal of

Criminal Law 259, 268. See also D Hamer, ‘A Dynamic Reconstruction of the Presumption of Innocence’
(2011) 31 Oxford Journal of Legal Studies 417; F Picinali, ‘Innocence and Burdens of Proof in English
Criminal Law’ (2014) 13 Law, Probability and Risk 243; A Stumer, The Presumption of Innocence: Evidential
and Human Rights Perspectives (2010).
43  R v Hunt [1987] AC 352.
Burden of Proof 39

The leading case on implied statutory exceptions to the Woolmington rule is the deci-
sion of the House of Lords in R v Hunt.44 The fundamental consideration was taken to
be that ‘Parliament can never lightly be taken to have intended to impose an onerous
duty on a defendant to prove his innocence in a criminal case, and a court should be
very slow to draw any such inference from the language of a statute’.45 The House of
Lords considered that a useful starting point was the decision of the Court of Appeal in
R v Edwards. The Court of Appeal had stated that any exception to the general rule that
the prosecution bears the legal burden of proving all elements of an offence ‘is 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’.46 Thus, if the statutory enactment were
of this kind, the legal burden would fall on the defence to prove that the act had been
done in one of the specified circumstances, or that the defendant belonged to a specified
class, or that he or she had a specified qualification, or that he or she had the necessary
licence or permission. If the enactment were not of this kind, then the Woolmington
principle would apply and the prosecution would bear the legal burden of proving all
elements of the offence. The House of Lords in Hunt considered this formula, however,
to be an ‘excellent guide to construction’ rather than a fixed rule. It is also necessary to
take into account other considerations, and especially considerations of policy, to deter-
mine legislative intent: ‘the court should look to other considerations to determine the
intention of Parliament such as the mischief at which the Act was aimed and practical
considerations affecting the burden of proof and, in particular, the ease or difficulty
that the respective parties would encounter in discharging the burden’.47 Attention was
drawn to the earlier decision of the House in Nimmo v Alexander Cowan & Sons Ltd.48
This concerned a now-repealed statutory provision that ‘every place at which any person
has at any time to work . . . shall, so far as is reasonably practicable, be made . . . safe for
any person working there’.49 An application of the Edwards formula would suggest that,
in a criminal prosecution under this provision, the legal burden in relation to the issue
of reasonable practicability would fall on the prosecution: the prosecution would have
the legal burden of proving that it was reasonably practicable to make the working place
safe. It was held in Nimmo, however, that the defence bore the legal burden of proving
that it was not reasonably practicable to make the working place safe. This was explained
in Hunt on the basis that it would be easier for the defence than the prosecution to bear
the appropriate legal burden.
The House of Lords also explained the results reached in two decisions of the Court of
Criminal Appeal. The first case, R v Oliver,50 concerned a prosecution for selling sugar
without a licence in contravention of the following Article:  ‘Subject to any directions
given or except under and in accordance with the terms of a licence, permit or other
authority granted by or on behalf of the Ministry no . . . wholesaler shall by way of trade . . .
supply . . . any sugar.’51 It was held that the legal burden lay on the defendant to prove that

44  [1987] AC 352. See generally F Bennion, ‘Statutory Exceptions: A Third Knot in the Golden Thread?’

[1988] Criminal Law Review 31; D J Birch, ‘Hunting the Snark:  The Elusive Statutory Exception’ [1988]
Criminal Law Review 221; P Healy, ‘Proof and Policy: No Golden Threads’ [1987] Criminal Law Review 355;
P Mirfield, ‘The Legacy of Hunt’ [1988] Criminal Law Review 19; P Mirfield, ‘An Ungrateful Reply’ [1988]
Criminal Law Review 233; P Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Criminal Law Review
783; J C Smith, ‘The Presumption of Innocence’ (1987) 38 Northern Ireland Legal Quarterly 223; A A  S
Zuckerman, ‘No Third Exception to the Woolmington Rule’ (1987) 103 Law Quarterly Review 170.
45  [1987] AC 352, 374. 46  [1975] QB 27, 40 (italics added). 47  [1987] AC 352, 374.
48  [1968] AC 107. 49  Factories Act 1961, s 29(1) (italics added). 50  [1944] KB 68.
51  Sugar (Control) Order 1940, Art 2 (italics added).
40
Burden and S tandard of Proof

he had the necessary licence to sell sugar. The second case, R v Putland,52 concerned a
prosecution for acquiring silk stockings without surrendering clothing coupons, in con-
travention of an article providing that ‘a person shall not acquire rationed goods . . . with-
out surrendering . . . coupons’.53 It was held that the legal burden lay on the prosecution to
prove that the stockings had been bought without the surrender of coupons. The House
of Lords in Hunt considered that ‘the real distinction between these two cases lies in the
comparative difficulty which would face a defendant in discharging the burden of proof’;
in Oliver,
it would have been a simple matter for the defendant to prove that he had a licence if
such was the case but in the case of purchase of casual articles of clothing it might,
as the court pointed out in Putland’s case, be a matter of the utmost difficulty for a
defendant to establish that he had given the appropriate number of coupons for them.
It appears . . . that it was this consideration that led the court to construe that particular
regulation as imposing the burden of proving that coupons had not been surrendered
upon the prosecution. 54
R v Hunt itself concerned a prosecution for the unlawful possession of morphine under
section 5 of the Misuse of Drugs Act 1971. The accused wanted to rely in his defence on
the Misuse of Drugs Regulations 1973, which provided that section 5 did not apply to any
preparation of morphine containing 0.2 per cent of morphine or less. The question for the
House of Lords was which party bore the legal burden of proof in relation to the issue of
the percentage of morphine. It was held that this burden was borne by the prosecution. In
so deciding, the House of Lords placed emphasis on the fact that, as it would be extremely
rare for a prosecution under the 1971 Act to be brought without the substance in ques-
tion having been analysed, there would be no difficulty for the prosecution to produce
evidence to show that it did not fall within the provision in the Regulations on which
the defendant sought to rely. ‘On the other hand if the burden of proof is placed upon
the defendant he may be faced with very real practical difficulties in discharging it. The
suspected substance is usually seized by the police for the purposes of analysis and there
is no statutory provision entitling the defendant to a proportion of it. Often there is very
little of the substance and if it has already been analysed by the prosecution it may have
been destroyed in the process.’55 It was also considered appropriate to ‘have regard to the
fact that offences involving the misuse of hard drugs are among the most serious in the
criminal calendar’, and thus ‘to resolve any ambiguity in favour of the defendant and to
place the burden of proving the nature of the substance involved in so serious an offence
upon the prosecution’.56
The issue was considered by the Divisional Court in Polychronakis v Richards and
Jerrom Ltd.57 At issue was section 80(4) of the Environmental Protection Act 1990, which
provided that, ‘if a person on whom an abatement notice is served, without reasonable
excuse, contravenes or fails to comply with any requirement or prohibition imposed by
the notice, he shall be guilty of an offence’.58 The Court drew attention to the fact that
section 80(7) and section 80(9) of the same Act created defences by providing that ‘it
shall be a defence to prove’, in the case of section 80(7), ‘that the best practicable means
were used to prevent, or to counteract the effects of, the nuisance’, and, in the case of sec-
tion 80(9), that one of the conditions specified was satisfied. Because there were statutory

52  [1946] 1 All ER 85.

53  Consumer Rationing (Consolidation) Order 1944 (SR & O 1944 No 800), Art 4 (italics added).
54  [1987] AC 352, 375. 55  [1987] AC 352, 377. 56  [1987] AC 352, 378.
57  [1998] JPL 588. 58  Italics added.
Burden of Proof 41

defences expressly placing the legal burden of proof on the defendant, Parliament must
have intended that the legal burden of proving the absence of reasonable excuse under
section 80(4) would fall on the prosecution.59
Of course, an approach permitting courts to go beyond even the clear wording of a
statutory provision is sufficiently flexible to be used to ‘explain’ decisions reached in pre-
vious cases which may be more appropriately regarded as wrongly decided.
This may be illustrated by way of an example.60 Section 161(1) of the Highways Act
198061 provides that it is an offence ‘if a person, without lawful authority or excuse,
deposits any thing whatsoever on a highway’. Section 137(1) of the same Act62 provides
that it is an offence ‘if a person, without lawful authority or excuse, in any way wilfully
obstructs . . . a highway’. The former provision has been held to place the legal burden of
proof in relation to the issue of lawful authority or excuse on the defence; it would be for
the defendant to prove the existence of lawful authority or excuse to the trier of fact.63 The
latter provision, however, has been construed as placing the legal burden on the prosecu-
tion; the prosecution would bear the legal burden of proving the absence of lawful author-
ity or excuse.64 It would be possible to explain this difference in outcomes by reference to
Hunt-type policy reasoning: we could argue, in the words of Smith, that
the obstruction section is the more important one in practice and its interpretation has
serious implications for civil liberties because those taking part in demonstrations or pick-
eting are likely to find themselves charged with an offence under this section. To impose
on such persons the burden of proving that every obstruction of the highway which they
might have caused was done with lawful authority or excuse would be a grave step.
Yet this reasoning, as Smith goes on to point out, seems unconvincing when viewed
alongside the fact that the two provisions are contained in the same statute and couched
in identical terms.65

59
  [1998] JPL 588, 591–2. See also R v Charles [2009] EWCA Crim 1570, [2010] 1 WLR 644, concerning
s 1(10) of the Crime and Disorder Act 1998, which made it an offence for a person, without reasonable
excuse, to do anything which he was prohibited from doing by an anti-social behaviour order. The Court
held ([2009] EWCA Crim 1570, [2010] 1 WLR 644 at [16]): ‘We are of the view . . . that it cannot have been
intended by Parliament to place any burden of proof on the defendant under section 1(10) which crim­
inalises conduct that Parliament itself has not criminalised and has not prescribed the terms in which that
can be done. Applying therefore the test in . . . Edwards . . . and in . . . Hunt . . ., we are of the clear view that the
burden of proving reasonable excuse rests on the Crown where the defendant has raised the issue on the evi-
dence before the court. The Act is perfectly workable on the basis that it imposes only an evidential burden
on the defendant, but leaves the legal burden on the Crown.’ Cf DPP v Kavaz [1999] RTR 40: prosecution
for using a motor vehicle without a test certificate—defendant bears legal burden of proving possession of
a certificate; prosecution for using a motor vehicle without insurance—defendant bears legal burden of
proving possession of a policy. The relevant statutory provisions are to be found in ss 47 and 143 of the Road
Traffic Act 1988. Section 47(1) provides: ‘A person who uses on a road at any time, or causes or permits to
be so used, a motor vehicle to which this section applies, and as respects which no test certificate has been
issued within the appropriate period before that time, is guilty of an offence.’ Section 143 provides: ‘Subject
to the provisions of this Part of this Act (a) a person must not use a motor vehicle on a road . . . unless there
is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in
respect of third party risks as complies with the requirements of this Part of this Act’.
60  Adapted from J C Smith, ‘The Presumption of Innocence’ (1987) 38 Northern Ireland Legal

Quarterly 223.
61  Formerly Highways Act 1959, s 140(1). 62  Formerly Highways Act 1959, s 121(1).
63  Gatland v Metropolitan Police Commissioner [1968] 2 QB 279.
64  Nagy v Weston [1965] 1 All ER 78; Hubbard v Pitt [1975] 3 All ER 1; Hirst v Chief Constable of West

Yorkshire (1986) 85 Cr App R 143.

65  J C Smith, ‘The Presumption of Innocence’ (1987) 38 Northern Ireland Legal Quarterly 223, 232–3.
42
Burden and S tandard of Proof

As for the consideration of the relative ease or difficulty of discharging the legal burden,
there is no reason why the mere fact that the defendant holds the relevant information
or has better or even exclusive access to it should justify placing the legal burden on the
defence. Surely, if it is considered that this should justify placing some burden on the
defence, it would be sufficient to place on the defence the evidential burden of putting
forward sufficient evidence to put the relevant matter in issue; once the defendant does
this, ‘his advantage evaporates’.66 It is notable that the consideration that the defendant
in a particular case can supposedly discharge the legal burden with relative ease probably
remains the single most important factor influencing the courts. Environment Agency v
M E Foley Contractors Ltd67 concerned section 33(1)(a) of the Environmental Protection
Act 1990, which made it an offence to ‘deposit controlled waste, or knowingly cause or
knowingly permit controlled waste to be deposited in or on any land unless a waste man-
agement licence authorising the deposit is in force and the deposit is in accordance with
the licence’. The Administrative Court held that ‘it was for the prosecution to prove that it
had delivered special waste, namely contaminated soil, but not that it had done so without
prior written approval. The latter negative averment was of a matter peculiarly within
the . . . defendant’s knowledge and it was for it to establish the requisite approval on a bal-
ance of probabilities if it sought to challenge the prosecution case in that respect.’68
The Administrative Court took a similar approach shortly afterwards in R (Grundy &
Co Excavations Ltd) v Halton Division Magistrates’ Court,69 which concerned provisions
of the Forestry Act 1967. Section 17(1) of the Act provided: ‘Anyone who fells a tree with-
out the authority of a felling licence, the case being one in which section 9(1) of this Act
applies so as to require such a licence, shall be guilty of an offence’. Section 9(1) provided
in essence that a felling licence was required, with subsections (2), (3), and (4) then list-
ing situations where subsection (1) did not apply. The Court held that the factual situa-
tions in subsections (2), (3), and (4) were exceptions within the meaning of section 101 of
the Magistrates’ Courts Act 1980 and thus the legal burden of proving that one of them
applied fell on the defendant. This conclusion, the Court thought, was prompted by (1) the
fact that the factual situations were described as exceptions in the Act itself (‘in section
9(5)(a) the [Forestry] Commissioners are given power to make regulations which provide
for “additional exceptions from the application of subsection (1)” and in section 9(5)(c) the
power extends to restricting or suspending “the exception in subsection 3(b)”’70); (2) the
general terms of the statute;71 and (3) practical considerations:
If no burden were imposed on the accused, the [Forestry] Commission would have to
negative all factual situations provided for both in subsections (2) to (4) and in the not
insignificant number of regulations which have been made. That would, quite simply, be
impossible.
On the other hand, if a burden is imposed on the accused, the facts should be within his
knowledge. If the accused is the person who would obtain the licence under section 10,

66  A Stein, ‘After Hunt: The Burden of Proof, Risk of Non-Persuasion and Judicial Pragmatism’ (1991) 54

Modern Law Review 570, 572. See also A Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006)
10 International Journal of Evidence and Proof 241, 266–8. For an Irish perspective see C Hamilton, ‘Threats
to the Presumption of Innocence in Irish Criminal Law: An Assessment’ (2011) 15 International Journal of
Evidence and Proof 181.
67  [2002] EWHC 258 (Admin), [2002] 1 WLR 1754.
68  [2002] EWHC 258 (Admin), [2002] 1 WLR 1754 at [28].
69  [2003] EWHC 272 (Admin), (2003) 167 JP 387.
70  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [27] (italics added).
71  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [28].
Burden of Proof 43

there will be no difficulty in his proving all the facts in any of the subsections upon which
he can rely. If the accused is a contractor, there should again be no real difficulty in estab-
lishing the relevant facts.72
The Court added that, while ‘the reverse onus of proof provisions in sections 9 and 17 of
the 1967 Act, read together, derogate from the presumption of innocence in [A]‌rticle 6(2)’,73
‘when all the relevant circumstances are taken into account, the Commission have
shown that it is necessary to impose a legal burden on the defence . . . to do so is entirely
proportionate’:74
A key consideration in determining the question whether it was necessary to impose a
legal as opposed to an evidential burden seems . . . to be the efficacy of the former and the
unworkability of the latter. There is . . . no difficulty in an accused proving any particular
set of facts upon which he wishes to rely in order to establish one of the exceptions. On
the other hand it would not be easy for the Commission to prove that the facts did not
establish an exception once it had been identified by way of evidence by the accused. For
example in many cases it will no longer be possible for the Commission to identify the size
of the trees once they have been felled without a licence . . . the scheme will only really work
if the burden is on the accused.75
Such an approach may well be appropriate for summary trials. There is much to be said,
however, for adopting a separate approach in relation to trials on indictment. Trials on
indictment differ from summary trials in a number of important respects: they are inher-
ently more ‘serious’ and formal affairs, and have the potential to lead to far more drastic
consequences for those found guilty. It would arguably be more consistent with the pre-
sumption of innocence, therefore, for the law to embrace a principle whereby, in trials on
indictment, legal burdens can be placed on defendants by the legislature expressly only,
and not by implication. On such an approach, where in a trial on indictment a statutory
provision is construed as impliedly placing a burden on the defence, that burden can only
be an evidential burden.76 If Parliament wishes to place a legal burden upon the defence
in a trial on indictment, it must do so expressly. The House of Lords considered that
adoption of this principle would represent ‘such a fundamental change’ that it must be
a matter for Parliament rather than the House of Lords.77 Furthermore, the adoption of
such a principle would mean, of course, that, in the case of offences triable either way, the
location of the burden of proof may differ according to whether the offence is being tried
summarily or on indictment. Lord Griffiths commented that ‘the law would have devel-
oped on absurd lines if in respect of the same offence the burden of proof today differed
according to whether the case was being heard by the magistrates or on indictment’.78 It

72  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [29]–[30].

73  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [61].
74  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [70].
75  [2003] EWHC 272 (Admin), (2003) 167 JP 387 at [67]. See also DPP v Barker [2004] EWHC 2502

(Admin), (2004) 168 JP 617 and Hogan v DPP [2007] EWHC 978 (Admin), [2007] 1 WLR 2944. Hogan was
charged with acquiring and possessing criminal property contrary to s 329(1) of the Proceeds of Crime
Act 2002, and sought to invoke s 329(2), which provided: ‘But a person does not commit such an offence
if . . . (c) he acquired or . . . had possession of the property for adequate consideration’. The Administrative
Court held that the legal burden fell on the prosecution to prove that there had been no consideration, or
that any consideration had been inadequate. In R v Makuwa [2006] EWCA Crim 175, [2006] 1 WLR 2755,
the Court of Appeal held that the legal burden in relation to the issue of refugee status in s 31(1) of the
Immigration and Asylum Act 1999 should be borne by the prosecution.
76  Cf Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmnd 4991, 1972) 88–90.
77  R v Hunt [1987] AC 352, 376. 78  R v Hunt [1987] AC 352, 373.
44
Burden and S tandard of Proof

is unclear, however, why this should be regarded as a matter of such concern. After all, for
the reasons just stated, a Crown Court prosecution would by its nature be of a completely
different dimension from a prosecution in the magistrates’ court for precisely the same
offence.

1.2.1.4  Effect of Misdirection

A misdirection (or failure to give a direction) to the jury in a criminal trial on burden of
proof can lead to the quashing of a conviction on appeal. In R v Zarrabi,79 the trial judge
informed the jury that he was going to deal with the burden of proof, but in fact directed
them on the standard of proof. The Court of Appeal held that this constituted a misdirec-
tion and quashed the conviction. The conviction in R v Moon80 was quashed because the
jury had been directed that the legal burden of proof in relation to self-defence fell on the
accused. In R v O’Brien, where ‘nowhere in the whole of his summing-up did the judge
direct the jury that it was for the prosecution to prove that the defendant was not acting
in lawful self-defence’,81 the Court of Appeal held: ‘This was undoubtedly an important
misdirection in relation to a very significant aspect of the law of self-defence. It would
not be just, in our judgment, to dismiss this appeal on the basis that, notwithstanding a
misdirection, these convictions were safe.’82

1.2.2  Civil Trials
The principle in civil trials83 is that the party asserting an issue essential to his or her
case bears the legal burden of proof in relation to that issue. Unlike the position in
criminal trials, there is no presumption in civil trials, where in theory the parties are
‘equals’, that the party bringing the action bears the legal burden of proof in relation
to every issue. Thus in a tort action for negligence, the claimant bears the legal burden
of proving the existence of a duty of care, breach of that duty, and the consequential
loss. If the defendant wishes to raise a defence such as volenti non fit injuria or con-
tributory negligence, then he or she bears the legal burden of proving that defence. In
a similar vein, the claimant in a contract action bears the legal burden of proving the
existence of a contract, breach of that contract, and the consequential loss. The legal
burden of proving a defence such as discharge by agreement or frustration falls on the
defendant.
In Munro, Brice & Co v War Risks Association, 84 it was held that in an action on a
policy insuring against loss by perils of the sea, with a clause excepting loss by capture,
seizure, and consequences of hostilities, a plaintiff whose ship had been lost at sea did
not bear the legal burden of proving that it had not been lost by the excepted causes.
The legal burden of proving that it had been so lost fell on the defendant. The court
took the view ‘that . . . when in an action upon a policy of marine insurance the assured
has proved that his ship was sunk at sea, he has made out a prima facie case against
his underwriters on that policy, and that it is for them to set up the free of capture and
seizure exception and to bring themselves within it if they can’.85 This decision may
be compared with that reached in The Glendarroch.86 The plaintiffs brought an action
for the non-delivery of goods shipped under a bill of lading. The goods had been dam-
aged by sea water through the stranding of the vessel. The bill of lading exempted the

79  The Times, 23 Feb 1985. 80  [1969] 1 WLR 1705. 81  [2004] EWCA Crim 2900 at [23].
82  [2004] EWCA Crim 2900 at [35].
83  See generally C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25 Sydney Law

Review 165.
84  [1918] 2 KB 78. 85  [1918] 2 KB 78, 88. 86  [1894] P 226.
Burden of Proof 45

defendants from liability for loss or damage occasioned by perils of the sea, provided
that the defendants were not negligent. The Court of Appeal held that the legal burden
of proving the contract, and the non-delivery of the goods, was borne by the plaintiffs.
If the defendants relied on the exemption clause, then the legal burden fell on them to
prove that the damage was caused by a peril of the sea. But if the plaintiffs then relied
on the proviso, they bore the legal burden of proving that the damage was caused by the
defendants’ negligence.87
Where it is clear that an issue asserted by a party is one which is essential to his
or her case, then that party bears the legal burden in relation to the issue even if this
means having to ‘prove a negative’. In Abrath v North Eastern Railway Co it was held
that, in an action for malicious prosecution, the plaintiff had the legal burden of prov-
ing absence of reasonable or probable cause for institution of the prosecution. The
court noted that
in one sense that is the assertion of a negative, and we have been pressed with the proposi-
tion that when a negative is to be made out the onus of proof shifts. That is not so. If the
assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion
still rests upon the plaintiff. The terms ‘negative’ and ‘affirmative’ are after all relative and
not absolute.88
Whether a particular issue is one which is essential to a party’s case is dependent on
the substantive law. If the substantive law is not clear on the issue—for example, if
there is no applicable precedent—then the matter may be decided in accordance with
considerations of policy. The consideration that it is easier to ‘prove a positive’ than
to ‘prove a negative’ may then assume significance. In Joseph Constantine Steamship
Line Ltd v Imperial Smelting Corporation Ltd, a ship on charter was destroyed by an
explosion. The charterers brought an action claiming damages from the owners for
failure to load. The owners raised the defence of frustration. The issue arose whether
the owners bore the legal burden of proving that the explosion (the frustrating event)
was not their fault, or whether the charterers bore the legal burden of proving that the
explosion was the fault of the owners. The House of Lords held that the burden was
borne by the charterers. Lord Russell of Killowen remarked that ‘the proving of a nega-
tive, a task always difficult and often impossible, would be a most exceptional burden
to impose on a litigant’.89 Stone has pointed out in his analysis of the case that, even
in a situation where proof of fault or absence of fault is in fact practically impossible,
the holding of the House of Lords can be justified from the viewpoint of policy. This is
because the assumption can be made that the vast majority of frustration cases involve
no human fault. Thus, to require a defendant pleading frustration to prove absence of
fault would necessarily do injustice to the vast majority of defendants, while to require
the plaintiff to prove fault would necessarily do injustice to only a small minority of
plaintiffs.90
The Privy Council has taken the view that it is preferable that the burden of proof in
relation to the issue of mitigation of damage should lie with the defendant than with
the claimant. Thus it should not be for a claimant who has refused medical treatment to
prove that this refusal was reasonable, but rather for the defendant to prove that it was
unreasonable.91

87  [1894] P 226, 231. 88  (1883) 11 QBD 440, 457. See also 462. 89  [1942] AC 154, 177.
90  J Stone, ‘Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship,
Ltd v Imperial Smelting Corporation, Ltd’ (1944) 60 Law Quarterly Review 262, 278.
91  Geest plc v Lansiquot [2002] UKPC 48, [2002] 1 WLR 3111 at [14].
46
Burden and S tandard of Proof

1.3  Incidence of Evidential Burden

Generally, the party which bears the legal burden of proving a particular issue also
bears the evidential burden in relation to that issue. In criminal trials, however, this
is not always the case. It is true that both the legal and the evidential burden in rela-
tion to actus reus and mens rea fall on the prosecution. The fact that the prosecution
bears the evidential burden in relation to actus reus and mens rea means that any
failure on its part to discharge this burden by the close of its case will entitle the
defence to a ruling that there is no case for it to answer. Similarly, where the defence
bears the legal burden of proof in relation to a particular issue (either pursuant to
the M’Naghten rules or pursuant to an express or implied statutory exception to the
Woolmington rule), the evidential burden in relation to that issue is also borne by
the defence.
An exception to the general principle arises where the legal burden of disproving a
common law defence falls on the prosecution. This is the position with respect to the
common law defences of self-defence,92 duress,93 and non-insane automatism.94 If the
defendant seeks to rely on one of these defences, then, unless sufficient evidence to put
the defence in issue has already emerged during the trial, the defence (rather than the
prosecution) bears an evidential burden. To discharge this, it must introduce sufficient
evidence to satisfy the trial judge that the defence in question should be left to the jury
for its consideration. The legal burden of proving to the jury that the defendant was not
acting in self-defence, under duress, or in a state of non-insane automatism (as the case
may be) then falls on the prosecution.95
The same approach is taken to statutory defences in relation to which the prosecution
bears the burden of proof, but of the details of which the prosecution would require
notice. For example, section 1(1)(a) of the Sexual Offences Act 1967 (now repealed) pro-
vided that ‘a homosexual act in private shall not be an offence provided that the parties
consent thereto and have attained the age of sixteen years’. Section 1(6) of the same Act
provided that ‘where in any proceedings it is charged that a homosexual act is an offence
the prosecutor shall have the burden of proving that the act was done otherwise than
in private or otherwise than with the consent of the parties or that any of the parties
had not attained the age of sixteen years’. It was held that privacy, consent, or age was
to be put in issue by the defence, and, if this evidential burden was discharged, the legal
burden then fell on the prosecution.96 Polychronakis v Richards and Jerrom Ltd, as seen
in Section 1.2.1.3, concerns a statutory provision construed by the Divisional Court as
placing the legal burden of disproving a defence on the prosecution. The Court held,
however, that while the legal burden of proof in relation to the issue of reasonable excuse
fell on the prosecution, the evidential burden fell on the defence: ‘once the defendant has
laid the proper evidential basis for a contention that he has a reasonable excuse, it is for
the prosecution to satisfy the court . . . that the excuse is not a reasonable one’.97 Referring
to R v Clarke,98 the Court noted that it had similarly been decided in the context of the
drink-driving legislation that ‘once there was some evidence of a reasonable excuse for
failing to provide a specimen it was for the prosecution to eliminate the existence of such

92  R v Lobell [1957] 1 QB 547. 93  R v Gill [1963] 1 WLR 841.

94  Bratty v A-G for NI [1963] AC 386.
95  In the USA, the legal burden of proof in relation to duress can fall on the defendant: Dixon v US 548 US

1 (2006). See generally ‘Firearms Regulation—Defense of Duress’ (2006) 120 Harvard Law Review 322; H
L Ho, ‘Comparative Observations on the Burden of Proof for Criminal Defences’ (2011) 9(2) International
Commentary on Evidence. See also Smith v US 133 S Ct 714 (2013).
96  R v Spight [1986] Crim LR 817. 97  [1998] JPL 588, 592. 98  [1969] 1 WLR 1109.
S tandard of Proof 47

a defence to the satisfaction of the jury’.99 A similar approach was also taken to section
95(1) of the Public Health Act 1936 in relation to the existence of a reasonable excuse for
failure to comply with a nuisance order.100

2  Standard of Proof
If a party bears the legal burden of proving a particular issue, to what standard does
that party need to discharge the burden? ‘The function of a standard of proof’, the US
Supreme Court has noted succinctly, ‘is to “instruct the factfinder concerning the degree
of confidence our society thinks he should have in the correctness of factual conclusions
for a particular type of adjudication.”[101] . . . The standard serves to allocate the risk of
error between the litigants and to indicate the relative importance attached to the ulti-
mate decision.’102

2.1  Criminal Trials
2.1.1  Where the Prosecution Bears the Legal Burden
Where the prosecution bears the legal burden of proving a particular issue, it must be
proved ‘beyond reasonable doubt’.103
. . . the standard of proof beyond a reasonable doubt is . . . inextricably linked to that basic
premise which is fundamental to all criminal trials:  the presumption of innocence.
The two concepts are forever as closely linked as Romeo with Juliet or Oberon with
Titania . . . If the presumption of innocence is the golden thread of criminal justice then

99
  [1998] JPL 588, 591.
100
  Saddleworth Urban District Council v Aggregate and Sand Ltd (1970) 69 LGR 103, 107. See also R v
Makuwa [2006] EWCA Crim 175, [2006] 1 WLR 2755 at [26] (on the issue of refugee status in s 31(1) of the
Immigration and Asylum Act 1999) (where the Court of Appeal held that the legal burden in relation to
the issue of refugee status should be borne by the prosecution: ‘provided that the defendant can adduce suf-
ficient evidence in support of his claim to refugee status to raise the issue, the prosecution bears the burden
of proving to the usual standard that he is not in fact a refugee’); Hogan v DPP [2007] EWHC 978 (Admin),
[2007] 1 WLR 2944 (in which Hogan was charged with acquiring and possessing criminal property con-
trary to s 329(1) of the Proceeds of Crime Act 2002, and sought to invoke s 329(2), which provided: ‘But
a person does not commit such an offence if . . . (c)  he acquired or . . . had possession of the property for
adequate consideration’). The Administrative Court held that the evidential burden in relation to the issue
of adequate consideration fell on the defendant.
101  Quoting from In re Winship 397 US 358, 370 (1970).
102  Addington v Texas 441 US 418, 423 (1979). Lord Bingham CJ stated that ‘the standard of proof required

must in my judgment always depend on the nature of the proceeding and the potential consequences of an
adverse finding’: McCool v Rushcliffe BC [1998] 3 All ER 889, 894. See generally D Hamer, ‘Presumptions,
Standards and Burdens: Managing the Cost of Error’ (2014) 13 Law, Probability and Risk 221.
103  See generally C Boyle, ‘Reasonable Doubt in Credibility Contests:  Sexual Assault and Sexual

Equality’ (2009) 13 International Journal of Evidence and Proof 269; H L Ho, ‘Re-imagining the Criminal
Standard of Proof: Lessons from the “Ethics of Belief ”’ (2009) 13 International Journal of Evidence and
Proof 198; H Lando, ‘Prevention of Crime and the Optimal Standard of Proof in Criminal Law’ (2009) 5
Review of Law and Economics 33; L Laudan and H D Saunders, ‘Re-Thinking the Criminal Standard of
Proof: Seeking Consensus about the Utilities of Trial Outcomes’ (2009) 7(2) International Commentary
on Evidence; F Picinali, ‘Is “Proof Beyond a Reasonable Doubt” a Self-Evident Concept? Considering the
US and the Italian Legal Cultures towards the Understanding of the Standard of Persuasion in Criminal
Cases’ (2009) 9(4) Global Jurist art 5; J C Smith, ‘Satisfying the Jury’ [1988] Criminal Law Review 335;
D Wolchover and A Heaton-Armstrong, ‘Reasonable Doubt’ (2010) 174 Criminal Law and Justice Weekly
484. For a historical perspective, see J Q Whitman, The Origins of Reasonable Doubt: Theological Roots of
the Criminal Trial (2008).
48
Burden and S tandard of Proof

proof beyond a reasonable doubt is the silver and these two threads are forever inter-
twined in the fabric of criminal law.104
What the requirement of proof beyond reasonable doubt means is that, if the trier of fact
is left with at least reasonable doubt about the defendant’s guilt, an acquittal must follow.
The degree of probability required by the beyond-reasonable-doubt standard is thus a high
one,105 but the standard does not, by definition, require that the prosecution’s case be proved
beyond all doubt.106 ‘The law would fail to protect the community if it admitted fanciful pos-
sibilities to deflect the course of justice. If the evidence is so strong against a man as to leave
only a remote possibility in his favour which can be dismissed with the sentence “of course
it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but
nothing short of that will suffice.’107
It is important that a jury be directed on the appropriate standard of proof:
The jury must be clearly and unambiguously instructed that the burden of proving the guilt
of the accused lies and lies only on the Crown, that (subject to [certain] exceptions . . .) there
is no burden on the accused to prove anything and that if, on reviewing all the evidence, the
jury are unsure of or are left in any reasonable doubt as to the guilt of the accused that doubt
must be resolved in favour of the accused. Such an instruction has for very many years been
regarded as a cardinal requirement of a properly conducted trial. The courts have not been
willing to countenance departures from it.108
In giving such a direction, it is not incumbent on the judge to use any particular form of
words, so long as the correct message is conveyed.109 ‘It is the effect of the summing-up
as a whole that matters.’110 Clearly, a direction that the jury must simply be ‘satisfied’ of
guilt is inadequate.111 But, while proof beyond reasonable doubt clearly does not require
that the jury be sure or certain of guilt,112 it would appear that English law is prepared to
err on the side of the defence by acknowledging that ‘one would be on safe ground if one
said in a criminal case to a jury: “You must be satisfied beyond reasonable doubt” and one
could also say: “You, the jury, must be completely satisfied,” or better still: “You must feel

104
  R v Lifchus [1997] 3 SCR 320 at [27]. See generally R Pattenden, ‘Explaining a “Reasonable Doubt” to
Juries: R v Lifchus’ (1998) 2 International Journal of Evidence and Proof 253.
105
  Note the comment of the US Supreme Court in Addington v Texas 441 US 418, 428 (1979) that ‘the
heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must
be minimized even at the risk that some who are guilty might go free’.
106  See Addington v Texas 441 US 418, 430 (1979): ‘If the state was required to guarantee error-free con-

victions, it would be required to prove guilt beyond all doubt.’

107  Miller v Minister of Pensions [1947] 2 All ER 372, 373.
108  R v Bentley [2001] 1 Cr App R 21 at [49].
109  R v Kritz [1950] 1 KB 82, 89; R v Hepworth [1955] 2 QB 600, 603–4; Ferguson v R [1979] 1 WLR 94, 99.
110  Walters v R [1969] 2 AC 26, 31. A similar approach is taken in Canada: R v Rhee [2001] 3 SCR 364 at

[32] (‘When reviewing a pre-Lifchus reasonable doubt charge, there is no particular mistake or omission
that will automatically constitute a reversible error in and of itself, nor is there an additional instruction
that will immediately cure a particular shortcoming. Ultimately, the focus must be on whether there is a
reasonable likelihood that the jury misunderstood the criminal standard of proof’). See also R v Beauchamp
[2000] 2 SCR 720; R v Russell [2000] 2 SCR 731; R v Avetysan [2000] 2 SCR 745; R v Pan [2001] 2 SCR 344; R
v Griffin 2009 SCC 28, [2009] 2 SCR 42; R v Layton 2009 SCC 36, [2009] 2 SCR 540. See generally P Healy,
‘Direction and Guidance on Reasonable Doubt in the Charge to the Jury’ (2001) 6 Canadian Criminal Law
Review 161.
111  R v Bentley [2001] 1 Cr App R 21 at [42].
112  W Young, ‘Summing-Up to Juries in Criminal Cases—What Jury Research Says About Current Rules

and Practice’ [2003] Criminal Law Review 665, 674: ‘The certainty implied by the words “satisfied so that
you are sure” or even just “sure” does not fit altogether easily with the uncertainties implicit in the phrase
“reasonable doubt”.’
S tandard of Proof 49

sure of the prisoner’s guilt.”’113 This is to be contrasted with the position in Canada, where
it has been observed:
In the United Kingdom juries are instructed that they may convict if they are ‘sure’ or ‘cer-
tain’ of the accused’s guilt. Yet . . . that instruction standing alone is both insufficient and
potentially misleading. Being ‘certain’ is a conclusion which a juror may reach but, it does
not indicate the route the juror should take in order to arrive at the conclusion.
It is only after proper instructions have been given as to the meaning of the expression
‘beyond a reasonable doubt’ that a jury may be advised that they can convict if they are
‘certain’ or ‘sure’ that the accused is guilty.114
As has been noted:
The concept of proof beyond reasonable doubt does not require the prosecution to estab-
lish its case as a matter of absolute or scientific certainty. However the ‘satisfied so that
you are sure’ or ‘are sure’ formulations are likely to be taken by many (and perhaps most)
jurors as conveying just that. So there is a gap between the message that judges try to give
and the message as understood by many or most jurors.115
This hypothesis has, however, been criticized by Heffer, who seeks to demonstrate that
‘in judges’ directions to the jury on the criminal standard of proof, the use of sure does
not in itself set an impossible standard’. For example, argues Heffer, ‘evidence of the way
linguistic expressions of certainty are actually used in court tends to confirm a functional
interpretation rather than a formal one, which suggests that at least some jurors might
think more in terms of binary categories (they are either sure or not sure) rather than
feeling degrees of sureness’.116
It would appear to be permissible in English law for a jury to be told that a reasonable
doubt is ‘that quality and kind of doubt which, when you are dealing with matters of
importance in your own affairs, you allow to influence you one way or the other’.117 In R v
Yap Chuan Ching,118 the jury was directed as follows:
A reasonable doubt, it has been said, is a doubt to which you can give a reason as opposed
to a mere fanciful sort of speculation such as ‘Well, nothing in this world is certain noth-
ing in this world can be proved.’ . . . It is sometimes said the sort of matter which might
influence you if you were to consider some business matter. A matter, for example, of a
mortgage concerning your house, or something of that nature.119

113  R v Hepworth [1955] 2 QB 600, 603. An empirical study found ‘that three-quarters of both the general

public sample and of the magistrates’ sample said they would need to be at least 90 per cent sure before
convicting. That suggests that most people, whatever their role and experience of the system, take the busi-
ness of convicting very seriously’ (M Zander, ‘The Criminal Standard of Proof—How Sure Is Sure?’ (2000)
150 New Law Journal 1517, 1519). See also M Zander, ‘Question: What Is Having No Reasonable Doubt?
Answer: Being Sure’, The Times, 28 Feb 2013 (online). In practice, it would seem, ‘most judges still say to
the jury words to the effect that [the relevant test] was once called “reasonable doubt”, on the assumption
that most lay juries will speculate as to where this iconic expression has gone’: J Cooper, ‘Time to Abolish
“Reasonable Doubt”?’, The Times, 28 Feb 2013 (online).
114  R v Lifchus [1997] 3 SCR 320 at [33]–[34] (underlining in original). See also the empirical research

which found that defining the standard of proof only in terms of being ‘sure’ of guilt ‘encourages a dispro-
portionate number of potential jurors to refuse convictions on less than an (impossible!) requirement of
100% certainty’: J W Montgomery, ‘The Criminal Standard of Proof’ (1998) 148 New Law Journal 582, 584.
115  W Young, ‘Summing-Up to Juries in Criminal Cases—What Jury Research Says About Current Rules

and Practice’ [2003] Criminal Law Review 665, 675.

116  C N Heffer, ‘The Language of Conviction and the Convictions of Certainty: Is “Sure” an Impossible

Standard of Proof?’ (2007) 5(1) International Commentary on Evidence (italics in original).

117  Walters v R [1969] 2 AC 26. 118  (1976) 63 Cr App R 7. 119  (1976) 63 Cr App R 7, 8.
50
Burden and S tandard of Proof

The Court of Appeal held that, while the trial judge had not stressed that the relevant
doubts were those which had to be overcome in important business affairs, he had not
fallen in error since ‘what he did was to pick an example, which for sensible people would
be an important matter’.120 This case may be contrasted with R v Gray.121 The trial judge
defined a ‘reasonable doubt’ as ‘a doubt based upon good reason and not a fanciful doubt’,
and as ‘the sort of doubt which might affect you in the conduct of your everyday affairs’.
The Court of Appeal held that if the trial judge had referred to important affairs then the
direction would have been unobjectionable, but ‘everyday affairs’ might have suggested to
the jury a standard of proof which was too low.
In Canada, by contrast, the view is taken that ‘to invite jurors to apply to a criminal
trial the standard of proof used for even the important decisions in life runs the risk of
significantly reducing the standard to which the prosecution must be held’.122
In R v Stafford123 the trial judge told the jury to ‘remember that a reasonable doubt is one
for which you could give reasons if you were asked’. On appeal, the Court of Appeal disap-
proved of this definition. In McGreevy v DPP,124 the House of Lords expressed the view that
‘it would be undesirable to lay it down as a rule which would bind judges that a direction to
a jury in cases where circumstantial evidence is the basis of the prosecution case must be
given in some special form, provided always that in suitable terms it is made plain to a jury
that they must not convict unless they are satisfied of guilt beyond all reasonable doubt’.125

2.1.2  Where the Defence Bears the Legal Burden

Where the defence bears the legal burden of proving a particular issue, it need only be proved
on the ‘preponderance of probability’, or, as it is more commonly termed, on the ‘balance of
probability’.126 This is the civil standard of proof, which will be considered in detail shortly.

2.1.3  Effect of Misdirection

While a misdirection (or failure to give a direction) to the jury in a criminal trial on
standard of proof can lead to the quashing of a conviction on appeal, ‘a conviction may be
regarded as safe despite the absence of an adequate direction even on a matter as funda-
mental as the standard of proof. But that could only be an appropriate conclusion where
the case against the defendant was properly held to be overwhelming’.127

2.2  Civil Trials
2.2.1  The General Rule
Where a legal burden requires to be discharged in civil proceedings,128 the relevant stand-
ard of proof is proof on the balance (or preponderance) of probability,129 which is lower

120  (1976) 63 Cr App R 7, 10. 121  (1973) 58 Cr App R 177.

122  R v Lifchus [1997] 3 SCR 320 at [24]. See also R v Bisson [1998] 1 SCR 306. On the other hand, ‘to
advise jurors that a “reasonable doubt” is a doubt which is so serious as to prevent them from eating or
sleeping is manifestly misleading . . . These words would lead a juror to set an unacceptably high standard of
certainty’: R v Lifchus [1997] 3 SCR 320 at [26] (italics added).
123  [1968] 3 All ER 752. 124  [1973] 1 WLR 276. 125  [1973] 1 WLR 276, 285.
126  See, eg, R v Carr-Briant [1943] KB 607, R v Dunbar [1958] 1 QB 1, and Public Prosecutor v Yuvaraj

[1970] 2 WLR 226 (cases where the burden was placed on the defence expressly by statute); Sodeman v R
[1936] 2 All ER 1138 (insanity); R v Podola [1960] 1 QB 325 (unfitness to plead).
127  R v Bentley [2001] 1 Cr App R 21 at [43]. See also R v Edwards (1983) 77 Cr App R 5.
128  See generally C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25 Sydney Law Review 165.
129  See generally E K Cheng, ‘Reconceptualizing the Burden of Proof’ (2013) 122 Yale Law Journal

1254; D Hamer, ‘The Civil Standard of Proof Uncertainty: Probability, Belief and Justice’ (1994) 16 Sydney
S tandard of Proof 51

than the beyond-reasonable-doubt standard. Thus, ‘if the evidence is such that the tribu-
nal can say: “We think it more probable than not,” the burden is discharged, but, if the
probabilities are equal, it is not’.130 In other words, ‘the balance of probability standard
means that a court is satisfied an event occurred if the court considers that, on the evi-
dence, the occurrence of the event was more likely than not’.131 This standard is often
described as a flexible one the application of which is dependent upon the subject matter
of the proceedings and particularly the seriousness of the allegation.132 What precisely
this flexibility entails has been explained by the House of Lords:
When assessing the probabilities the court will have in mind as a factor, to whatever
extent is appropriate in the particular case, that the more serious the allegation the
less likely it is that the event occurred and, hence, the stronger should be the evidence
before the court concludes that the allegation is established on the balance of probabil-
ity. Fraud is usually less likely than negligence. Deliberate physical injury is usually less
likely than accidental physical injury. A step-father is usually less likely to have repeat-
edly raped and had non-consensual oral sex with his under age stepdaughter than on
some occasion to have lost his temper and slapped her. Built into the preponderance of
probability standard is a generous degree of flexibility in respect of the seriousness of
the allegation.
Although the result is much the same, this does not mean that where a serious allega-
tion is in issue the standard of proof required is higher. It means only that the inherent
probability or improbability of an event is itself a matter to be taken into account when
weighing the probabilities and deciding whether, on balance, the event occurred. The
more improbable the event, the stronger must be the evidence that it did occur before, on
the balance of probability, its occurrence will be established.133

Law Review 506; M Redmayne, ‘Standards of Proof in Civil Litigation’ (1999) 62 Modern Law Review 167;
A Stein, ‘An Essay on Uncertainty and Fact-Finding in Civil Litigation, with Special Reference to Contract
Cases’ (1998) 48 University of Toronto Law Journal 299.
130
  Miller v Minister of Pensions [1947] 2 All ER 372, 374.
131
  In re H (Minors) [1996] 2 WLR 8, 23. 132
  Bater v Bater [1951] P 35, 37.
133
  In re H (Minors) [1996] 2 WLR 8, 23–4. See also, more recently, R (N)  v Mental Health Review
Tribunal [2005] EWCA Civ 1605, [2006] QB 468; In re D [2008] UKHL 33, [2008] 1 WLR 1499 (see gener-
ally D Mason, ‘The Lioness in Regent’s Park’ (2008) 158 New Law Journal 1105; P Mirfield, ‘How Many
Standards of Proof are There?’ (2009) 125 Law Quarterly Review 31); In re B (Children) [2008] UKHL 35,
[2009] 1 AC 11 (see generally A Bainham, ‘Striking the Balance in Child Protection’ [2009] Cambridge
Law Journal 42; C Cobley and N Lowe, ‘Interpreting the Threshold Criteria under Section 31(2) of the
Children Act 1989—The House of Lords Decision in Re B’ (2009) 72 Modern Law Review 463; H Keating,
‘Suspicions, Sitting on the Fence and Standards of Proof ’ (2009) 21 Child and Family Law Quarterly 230);
In re S-B (Children) [2009] UKSC 17, [2010] 1 AC 678. The Supreme Court of Canada has taken the same
approach (FH v McDougall 2008 SCC 53, [2008] 3 SCR 41 at [40] per Rothstein J, delivering the judgment
of the Court): ‘Like the House of Lords, I think it is time to say, once and for all in Canada, that there is
only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course,
context is all important and a judge should not be unmindful, where appropriate, of inherent probabili-
ties or improbabilities or the seriousness of the allegations or consequences. However, these considera-
tions do not change the standard of proof.’ Note that the Court of Appeal held in Lawrence v Chester
Chronicle, The Times, 8 Feb 1986, that, in trials of defamation actions (civil actions tried with a jury), it
was not generally necessary for the jury to be directed about the flexibility inherent in the civil standard
of proof and the relevance of the seriousness of the alleged defamatory statement; in most cases this was
a matter for the jury’s common sense. Interestingly, empirical research suggests that, even in criminal
cases, juries may apply a higher standard of proof where a more serious offence is involved: R J Simon and
L Mahan, ‘Quantifying Burdens of Proof: A View from the Bench, the Jury, and the Classroom’ (1971) 5
Law and Society Review 319, 328. See also J McEwan, The Verdict of the Court: Passing Judgment in Law
and Psychology (2003) 135.
52
Burden and S tandard of Proof

The notion of the inherent probability or improbability of an event would appear, there-
fore, to underlie the entire determination of whether sufficient evidence has been adduced
to prove that the event occurred. The desirability of reliance upon such a vague and impre-
cise notion may be questioned. As has been argued:
we simply do not know very much about the general prevalence of fraud, negligence,
arson or child abuse, and this makes the claim that serious forms of behaviour are rarer
than less serious ones problematic. Even if there is a general correlation between gravity
and frequency of wrongdoing, it beggars belief to presume that the correlation always
holds.134
For a time, there was considerable uncertainty about the relevant standard of proof
where allegations of sexual abuse were made in care proceedings, with suggestions
made in some cases that such allegations had to be proved to a standard higher than
proof on the balance of probability. The House of Lords affirmed in In re H (Minors),
however, that the relevant ‘standard of proof is the ordinary civil standard of balance
of probability’.135 ‘Despite their special features, family proceedings remain essentially
a form of civil proceedings. Family proceedings often raise very serious issues, but so
do other forms of civil proceedings.’136 The House of Lords was not keen on the idea
of adopting a third standard of proof, lying between the balance-of-probability and
beyond-reasonable-doubt standards, for some civil cases. Not only would there be a
danger, it was thought, that a third standard would cause uncertainty and inconsist-
ency, but it would in any event add little to the ‘flexible’ balance-of-probability standard
currently applied.137
This has been confirmed by the House of Lords in In re B (Children), Baroness Hale of
Richmond noting that ‘care proceedings . . . are not there to punish or to deter anyone.
The consequences of breaking a care order are not penal. Care proceedings are there to
protect a child from harm. The consequences for the child of getting it wrong are equally
serious either way.’138

134
  M Redmayne, ‘Standards of Proof in Civil Litigation’ (1999) 62 Modern Law Review 167, 184–5.
135  [1996] 2 WLR 8, 24, approving H v H (Minors) (Child Abuse: Evidence) [1990] Fam 86, 94, 100, In re
M (A Minor) (Appeal) (No 2) [1994] 1 FLR 59, 67, and In re W (Minors) (Sexual Abuse: Standard of Proof)
[1994] 1 FLR 419, 424 per Balcombe LJ; and disapproving In re G (A Minor) (Child Abuse: Standard of
Proof) [1987] 1 WLR 1461, 1466, and In re W (Minors) (Sexual Abuse: Standard of Proof) [1994] 1 FLR
419, 429. See generally A Bainham, ‘Sexual Abuse in the Lords’ [1996] Cambridge Law Journal 209; D
Burrows, ‘Care Proceedings after Re H’ (1996) 140 Solicitors’ Journal 94; C Keenan, ‘Finding that a Child
Is at Risk from Sexual Abuse: Re H (Minors) (Sexual Abuse: Standard of Proof)’ (1997) 60 Modern Law
Review 857; R Stevens, ‘Getting over the Threshold—An Exegesis of Section 31(2) of the Children Act
1989’ (1996) 160 Justice of the Peace 111. In re H (Minors) was applied in Re M and R (Minors) [1996] 4
All ER 239.
136  In re H (Minors) [1996] 2 WLR 8, 23. 137  [1996] 2 WLR 8, 24.
138  [2008] UKHL 35, [2009] 1 AC 11. See generally J Delahunty and A  Grief, ‘Forthright and Fair’

[Oct  2008] Counsel 10; J Hayes, ‘Farewell to the Cogent Evidence Test:  Re B’ [2008] Family Law 859;
‘Lords End Confusion over Standard of Proof in Child Care Proceedings’ (2008) 152(24) Solicitors’
Journal 5; K Maclean and E Hall, ‘The Standard of Proof in Children Cases: Re B’ [2008] Family Law 737;
P Mirfield, ‘How Many Standards of Proof are There?’ (2009) 125 Law Quarterly Review 31. In Serious
Organised Crime Agency v Gale [2011] UKSC 49, [2011] 1 WLR 2760, the Supreme Court held that the
application of the civil standard of proof in civil recovery proceedings under s 241(3) of the Proceeds
of Crime Act 2002 did not violate the guarantee of the right to a fair trial in Art 6 of the European
Convention on Human Rights.
S tandard of Proof 53

2.2.2  Contempt of Court

It is well established that contempt of court must be proved beyond reasonable doubt,
even if the alleged contempt was of a civil court. In In re Bramblevale Ltd, Lord Denning
MR remarked:
A contempt of court is an offence of a criminal character. A man may be sent to prison for
it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved
beyond reasonable doubt.139

2.2.3  Allegations of Criminal Conduct

It has generally been held that allegations of criminal conduct in civil proceedings need
be proved on the balance of probability only, and not beyond reasonable doubt. This is,
of course, consistent with the view of the House of Lords in In re H (Minors) that the only
standard of proof applicable in civil proceedings is the balance-of-probability standard.
Thus this standard was applied in In re Dellow’s Will Trusts,140 where the issue arose in
civil proceedings of whether a wife had killed her husband, and Post Office v Estuary
Radio Ltd,141 where, in an application for an injunction under the Wireless Telegraphy Act
1949, an allegation of a criminal offence under the same Act was made.142 More recently,
in Francisco v Diedrick,143 it was held that the appropriate standard of proof in a civil
action for damages for assault and battery causing death was the civil standard, but it had
to be borne in mind that the allegation (effectively an allegation of murder) was one of
utmost gravity. Noteworthy, too, is Lord Bingham CJ’s interesting observation in McCool
v Rushcliffe BC that, ‘where in civil proceedings it is sought to prove conduct amounting
to or analogous to a criminal offence, the standard of proof must be analogous, at least, to
that appropriate in criminal proceedings’.144
In Halford v Brookes,145 by contrast, a different approach was taken. The plaintiff
brought a tort action for damages in respect of the murder of her daughter, who she
alleged had been murdered by the defendants. It was held that the allegation of murder
had to be proved beyond reasonable doubt: the court considered that nobody, whether
in a civil or criminal court, should be declared guilty of murder unless the tribunal
was sure that there was no other sensible conclusion. In the light of In re H (Minors),
Halford v Brookes is perhaps most appropriately regarded as wrongly decided. There
may, however, be some merit in the Halford approach. It is certainly arguable that it
is justifiable for such serious allegations as murder to have to be proved beyond rea-
sonable doubt, even if they are made in civil proceedings. A necessary (but perhaps
ultimately insurmountably difficult) task would be to delineate clearly those allega-
tions which would be regarded as sufficiently ‘serious’ as to warrant application of the
beyond-reasonable-doubt standard.

139  [1970] Ch 128, 137. See also In re A (A Child) [2008] EWCA Civ 1138, [2009] 1 WLR 1482 at [6]‌; as well

as the decision of the High Court of Australia in Witham v Holloway (1995) 69 ALJR 847 and C J Miller,
‘Proof of Civil Contempt’ (1996) 112 Law Quarterly Review 539.
140  [1964] 1 WLR 451. 141  [1967] 1 WLR 1396.
142  See also R v Major [2010] EWCA Crim 3016, [2011] 1 Cr App R 25 at [15]: a restraining order made

on acquittal pursuant to the provisions of s 5A of the Protection from Harassment Act 1997 ‘is a civil order
and so the ordinary civil standard of proof applies. Applying that standard a court may well conclude that,
whereas the conduct alleged has not been proved to the required criminal standard, it has been proved on
the balance of probabilities, and such a conclusion would not contradict the verdict of a jury or implicitly
suggest that the defendant was in fact guilty.’
143  The Times, 3 Apr 1998. 144  [1998] 3 All ER 889, 894 (italics added).
145  The Times, 3 Oct 1991.
54
Burden and S tandard of Proof

2.2.4  Quasi-Criminal Proceedings

General principles would require application of the civil standard even where important
matters such as a person’s liberty or livelihood are at stake in a non-criminal case. In R
v Home Secretary, ex p Khawaja, the applicant was detained as an illegal entrant and
applied for judicial review of the order detaining him. The House of Lords had to con-
sider the issue of the standard to which the executive was to prove that an individual had
obtained leave to enter the United Kingdom by deception. It was held that the appropriate
standard of proof was
the civil standard flexibly applied in the way set forth in the cases . . . Liberty is at stake: that
is . . . a grave matter. The reviewing court will therefore require to be satisfied that the facts
which are required for the justification of the restraint put upon liberty do exist. The
flexibility of the civil standard of proof suffices to ensure that the court will require the
high degree of probability which is appropriate to what is at stake . . . The strictness of the
criminal formula is unnecessary to enable justice to be done . . .146
In a similar vein, the Court of Appeal held that, in disciplinary proceedings under the
Fire Services (Discipline) Regulations 1948, a disciplinary offence need only be proved
on the balance of probability. Despite the fact that the Regulations used ‘the language of
the criminal law’ by speaking of ‘offences’, ‘the accused’, ‘charges’, and ‘punishments’, the
Court did not regard these proceedings as criminal proceedings.147
In R v Milk Marketing Board, ex p Austin,148 however, it was held that when a person’s
livelihood was at stake the standard of proof should be no lower than that applicable in
criminal proceedings. A similar approach was taken in In re a Solicitor,149 where the issue
was the standard of proof which had to be applied by a disciplinary tribunal in determin-
ing an allegation of misconduct. The Divisional Court stated that, ‘at least in cases such as
the present, where what is alleged is tantamount to a criminal offence, the tribunal should
apply the criminal standard of proof, that is to say proof to the point where they feel sure
that the charges are proved or, put in another way, proof beyond reasonable doubt’.150
This, indeed, may well have gained the acceptance of the House of Lords: the ‘beyond rea-
sonable doubt’ standard, it was noted in In re D, ‘is that required by the criminal law and
in such areas of dispute as contempt of court or disciplinary proceedings brought against
members of a profession’.151 In Campbell v Hamlet, the Privy Council stated: ‘That the
criminal standard of proof is the correct standard to be applied in all disciplinary pro-
ceedings concerning the legal profession, their Lordships entertain no doubt.’152 It is of
note that, since 31 May 2008, the civil standard of proof has been expressly provided to be
applicable in General Medical Council Fitness to Practise panel hearings.153
It is certainly arguable that, where the livelihood or liberty of a person is at stake, proof
beyond reasonable doubt should be required. After all, as has been seen in the previous
paragraphs, the justification for the adoption of the criminal standard in proceedings for
contempt of court is that such proceedings are ‘of a criminal character’. Arguably, the
same reasoning should apply in the case of other quasi-criminal proceedings.154 Another

146  [1984] AC 74, 113–14. Applied by the Court of Appeal in R v Home Secretary, ex p Rahman [1997] 3

WLR 990.
147  R v Hants CC, ex p Ellerton [1985] 1 WLR 749. 148  The Times, 21 Mar 1983.
149  [1993] QB 69. 150  [1993] QB 69, 81 (italics added).
151  [2008] UKHL 33, [2008] 1 WLR 1499 at [23] per Lord Carswell (italics added).
152  [2005] UKPC 19, [2005] 3 All ER 1116 at [16] (italics added).
153  General Medical Council (Fitness to Practise) Rules 2004, rule 34(12).
154  See generally A A S Zuckerman, ‘Evidence’ [1985] All ER Review 155, 156–7.
S tandard of Proof 55

possible example of the endorsement of this view by the House of Lords is provided by
R (McCann) v Manchester Crown Court.155 Lord Hope of Craighead commented that ‘it
is not an invariable rule that the lower standard of proof must be applied in civil pro-
ceedings. I think that there are good reasons, in the interests of fairness, for applying
the higher standard when allegations are made of criminal or quasi-criminal conduct
which, if proved, would have serious consequences for the person against whom they are
made.’156 In this case the House thought that, even though the proceedings for the mak-
ing of an anti-social behaviour order under the Crime and Disorder Act 1998 were civil
rather than criminal, the court should, before making such an order, be satisfied to the
criminal standard of proof that a defendant had, in the words of section 1(1)(a) of the Act,
‘acted . . . in an anti-social manner, that is to say, in a manner that caused or was likely to
cause harassment, alarm or distress to one or more persons not of the same household
as himself’. Given that ‘the condition in section 1(1)(a) that the defendant has acted in an
anti-social manner raises serious questions of fact, and the implications for him of prov-
ing that he has acted in this way are also serious’,157 ‘pragmatism dictates that the task of
magistrates should be made more straightforward by ruling that they must in all cases
under section 1 apply the criminal standard’.158

2.3  The United States: An Intermediate Standard

‘It is indisputable’, the House of Lords confirmed in 2008, ‘that only two standards are
recognised by the common law, proof on the balance of probabilities and proof beyond
reasonable doubt.’159 In the United States, by contrast, the existence of a third standard,
lying in between the civil and criminal standards, is acknowledged. This intermediate
standard160 is typically expressed in terms of a requirement of ‘clear and convincing
evidence’,161 and has been applied in civil cases involving allegations of fraud or some
other quasi-criminal wrongdoing; in civil cases where particularly important individual
interests are at stake, such as deportation162 and denaturalization163 proceedings; and in
civil proceedings brought under state law to commit an individual involuntarily to a state
mental hospital for an indefinite period.164 Perhaps it is time, in the interests of achieving
greater certainty and consistency in the longer term, for the English law on the standard
of proof in non-criminal proceedings to be subjected to a fundamental reconsideration.
The way forward may be to acknowledge openly the existence of an intermediate standard
of proof, identifying carefully the types of civil proceedings in which this standard should

155  [2002] UKHL 39, [2002] 3 WLR 1313. See generally C Bakalis, ‘Anti-Social Behaviour Orders—Criminal

Penalties or Civil Injunctions?’ [2003] Cambridge Law Journal 583; S Macdonald, ‘The Nature of the
Anti-Social Behaviour Order—R (McCann & Others) v Crown Court at Manchester’ (2003) 66 Modern Law
Review 630; P Tain, ‘Civil or Criminal?’ (2002) 146 Solicitors’ Journal 1037.
156  [2002] UKHL 39, [2002] 3 WLR 1313 at [82].
157  [2002] UKHL 39, [2002] 3 WLR 1313 at [83].
158  [2002] UKHL 39, [2002] 3 WLR 1313 at [37]. See also B v Chief Constable [2001] 1 All ER 562; Chief

Constable of Lancashire v Potter [2003] EWHC 2272 (Admin); R v W [2006] EWCA Crim 686, [2007] 1 WLR
339. Cf Revenue and Customs Comrs v Khawaja [2008] EWHC 1687 (Ch), [2009] 1 WLR 398.
159  In re D [2008] UKHL 33, [2008] 1 WLR 1499 at [23] per Lord Carswell. See also R (N) v Mental Health

Review Tribunal [2005] EWCA Civ 1605, [2006] QB 468.

160  See the general discussion in Addington v Texas 441 US 418 (1979).
161  Although any combination of the adjectives ‘clear’, ‘cogent’, ‘unequivocal’, and ‘convincing’ may be

encountered.
162  Woodby v INS 385 US 276, 285 (1966).
163  Schneiderman v US 320 US 118, 125, 159 (1943); Chaunt v US 364 US 350, 353 (1960).
164  Addington v Texas 441 US 418 (1979).
56
Burden and S tandard of Proof

be applied. As a corollary of this, consideration could also be given to the possibility of

identifying clearly the types of civil proceedings in which application of the criminal
standard may be appropriate.165

3.  Summary and Conclusion

In civil cases, there is a general rule that the party asserting an issue essential to its case
bears the burden of proving that issue. In criminal cases, the presumption of innocence
has led to the recognition of a general rule that the prosecution proves every issue. Where,
however, the defendant raises the defence of insanity (or unfitness to plead), he or she
bears the burden of proof in relation to that issue. The burden of proof in relation to a
particular issue may also be placed on the defendant expressly or impliedly by legislation.
Compatibility with the Human Rights Act 1998 may, however, require a burden placed on
the defendant by Parliament to be ‘read down’ as imposing an evidential burden only. The
process of determining whether a provision should be ‘read down’ can involve consider-
able uncertainty and unpredictability.
Proof on the balance of probability represents the ‘default’ standard of proof in English
law. Where, however, the prosecution bears the burden of proof this must be discharged
beyond reasonable doubt. What the different standards might require has been explained
in this chapter. In certain circumstances the claimant in a civil case must prove an issue
beyond reasonable doubt, but there is scope for further clarification of precisely when this
will be the case.

Further Reading
D Hamer, ‘Presumptions, Standards and Burdens: Managing the Cost of Error’ (2014) 13 Law,
Probability and Risk 221
F Picinali, ‘Innocence and Burdens of Proof in English Criminal Law’ (2014) 13 Law,
Probability and Risk 243
S K Ragavan, ‘An Intermediate Standard of Proof in Serious Civil Cases in England and
Wales’ (2014) 65 Northern Ireland Legal Quarterly 81

165
  See also S K Ragavan, ‘An Intermediate Standard of Proof in Serious Civil Cases in England and
Wales’ (2014) 65 Northern Ireland Legal Quarterly 81.
3
The Course of Evidence

1  The Adversarial Tradition

This chapter examines the principles relating to the presentation of evidence in court.
The English trial process is based on the adversarial tradition. This is to be distin-
guished from the inquisitorial model which is typically associated with Continental
European jurisdictions. The adversarial model in its paradigmatic form views the
presentation of evidence as the responsibility of the parties, with the judge playing
the role of a ‘neutral’ umpire. Adversarialism connotes ‘a system of adjudication in
which procedural action is controlled by the parties and the adjudicator remains essen-
tially passive’.1 By contrast, a pure inquisitorial model sees the judge playing a major
role in the presentation of evidence by calling and examining witnesses to whom the
parties may put supplementary questions.2 Trials in adversarial jurisdictions are also
said to be characterized by greater formality and theatricality than those in inquisito-
rial jurisdictions. 3 Of course, no jurisdiction conforms fully to either a pure adver-
sarial or inquisitorial model, and it must not be thought that the two models are in
any event diametrically opposed.4 Later we examine two fundamental features of the

1
  M R Damaška, Evidence Law Adrift (1997) 74. See generally D M Paciocco, ‘Understanding the
Accusatorial System’ (2010) 14 Canadian Criminal Law Review 307.
2
  See generally J Hodgson, ‘Conceptions of the Trial in Inquisitorial and Adversarial Procedure’ in
A Duff, L Farmer, S Marshall, and V Tadros (eds), The Trial on Trial: Vol 2—Judgment and Calling to
Account (2006); N Jörg, S Field, and C Brants, ‘Are Inquisitorial and Adversarial Systems Converging?’
in P Fennell, C Harding, N Jörg, and B Swart (eds), Criminal Justice in Europe: A Comparative Study
(1995); J H Langbein, ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’
(1996) 96 Columbia Law Review 1168, 1168–9; J F Nijboer, ‘Common Law Tradition in Evidence
Scholarship Observed from a Continental Perspective’ (1993) 41 American Journal of Comparative Law
299; S Wesley, ‘A Glimpse of French Criminal Justice—1’ (1998) 148 New Law Journal 326; S Wesley,
‘A Glimpse of French Criminal Justice—2’ (1998) 148 New Law Journal 669; M Zander, ‘Minister, the
Grass is not Greener across the Channel’, The Times, 4 Apr 2006, Law, 4; J Hodgson, French Criminal
Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (2005); J McEwan,
Evidence and the Adversarial Process:  The Modern Law (2nd ed 1998)  Ch 1; Royal Commission on
Criminal Justice, Report (Cm 2263, 1993) 3; M Zander, Cases and Materials on the English Legal System
(10th ed 2007) 395–8. See also M R Damaška, The Faces of Justice and State Authority: A Comparative
Approach to the Legal Process (1986).
3  See generally J McEwan, Evidence and the Adversarial Process: The Modern Law (2nd ed 1998) 11–12.

As has been noted, ‘trial procedure plays an important ceremonial part in the public ritual of judging an
offender and setting him apart from law-abiding members of society’: L Re, ‘Oral v Written Evidence: The
Myth of the “Impressive Witness”’ (1983) 57 Australian Law Journal 679, 689.
4  See A Eser, ‘Collection and Evaluation of Evidence in Comparative Perspective’ (1997) 31 Israel Law

Review 429, 429.
58
The Cour se of E vidence

adversarial model—the principle of orality and the notion of a neutral judge—to deter-
mine the extent to which English law has remained committed to these ideals. First,
however, we will consider the principles relating to pre-trial disclosure by the parties to
litigation.

1.1  Disclosure
There are two broad rationales for disclosure, applicable to both civil and criminal
proceedings. First, disclosure serves the basic requirement of adversarial trial, that the
defendant must be in a position to answer the case against him or her. This rationale
explains the requirement of disclosure of the prosecution case in criminal proceedings,
and, in civil proceedings, the requirement to disclose the documents on which the claim-
ant relies. The second rationale is that parties in both types of proceedings are placed
under a duty to see that justice is done.
The duty to do justice has long been recognized in criminal proceedings, in which the
prosecutor is conceived as a ‘minister of justice’ (a person who administers or dispenses
justice) rather than a partisan actor whose only interest lies in securing a conviction.5
The justification for this duty in criminal proceedings is that the prosecutor represents
the state, and the state’s interest is in getting the right or just result, whatever that may
be. It follows therefore that, while effectively prosecuting a case, the prosecutor must also
lend necessary aid to the defence and in particular should make available evidence or
other material which might assist the defence. It is arguable that a similar duty to do
justice is now extended to both the defendant and his or her representatives by virtue
of the Criminal Procedure and Investigations Act 1996 (as amended) which (as will be
discussed in this chapter) places the defendant under extensive pre-trial disclosure duties
in favour of the prosecution. It should be noted that this involves a substantial departure
from pure adversarialism in criminal procedure. Some commentators feel that it is wrong
in principle for the defendant to be burdened with duties to assist the prosecution, and
that rather the defendant should be fully entitled to devote all his energies to his own
defence.6
In civil procedure, the notion that a defendant owes a duty to secure justice is new
(and equally controversial in that it derogates from the adversarial ideal). The duty was
introduced by Lord Woolf’s civil procedure reforms and is expressed in Part 1 of the Civil
Procedure Rules, which establishes ‘enabling the court to deal with cases justly’ as the
overriding objective of the civil process7 and places both parties under a corresponding
duty to help the court to further that overriding objective.8

5  ‘The proper role of the prosecutor, contrary to popular perception, is not that of a partisan persecu-

tor bent on securing the conviction of an accused person but rather that of a quasi-judicial “minister of
justice” whose detached function is to seek justice and to ensure fairness’: D Plater, ‘The Development of
the Prosecutor’s Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate
or Minister of Justice?’ (2006) 25 University of Tasmania Law Review 111, 111. See also D Plater and L Line,
‘Has the “Silver Thread” of the Criminal Law Lost Its Lustre? The Modern Prosecutor as a Minister of
Justice’ (2012) 31 University of Tasmania Law Review 55, and, in the context of expert evidence (discussed
in Chapter 12), G Edmond, ‘(Ad)ministering Justice: Expert Evidence and the Professional Responsibilities
of Prosecutors’ (2013) 36 University of New South Wales Law Journal 921.
6  See Note of Dissent by M Zander in Royal Commission on Criminal Justice, Report (Cm 2263,

1993) 221–3.
7  Rule 1.1(1). See generally D Dwyer, ‘What is the Meaning of CPR R 1.1(1)?’ in D Dwyer (ed), The Civil

Procedure Rules Ten Years On (2009).

8  Rule 1.3.
THE ADVERSARIAL TRADITION 59

1.1.1  Civil
The disclosure of documents in civil proceedings is governed by the Civil Procedure
Rules.9 Disclosing a document means ‘stating that the document exists or has existed’.10
Only documents which are or have been in a party’s control11 are subject to disclosure by
that party.12 A party is generally required to disclose:
(a) the documents on which he relies; and
(b) the documents which—
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.13
The party is required to make a reasonable search for such documents.14 ‘Any duty of
disclosure continues until the proceedings are concluded.’15
Rule 31.17 makes specific provision in relation to disclosure by third parties:
(1) This rule applies where an application is made to the court under any Act for disclo-
sure by a person who is not a party to the proceedings. . . .
(3) The court may make an order under this rule only where—
(a) the documents of which disclosure is sought are likely to support the case of the appli-
cant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.
Rule 31.19(1) provides: ‘A person may apply, without notice, for an order permitting him
to withhold disclosure of a document on the ground that disclosure would damage the
public interest.’ More will be said about the procedure for claiming public interest immu-
nity in Chapter 8.
A document which a party fails to disclose may not be relied on by that party ‘unless
the court gives permission’.16 The use by a party of a document which has been disclosed
to that party is governed by rule 31.22(1):
A party to whom a document has been disclosed may use the document only for the pur-
pose of the proceedings in which it is disclosed, except where—
(a) the document has been read to or by the court, or referred to, at a hearing which has
been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document
belongs agree.17

9  See generally J M Collins, ‘Disclosure Pitfalls . . . and How to Avoid Them’ (2005) 155 New Law Journal

1385; A Higgins, ‘Open Door Disclosure in Civil Litigation’ (2012) 16 International Journal of Evidence and
Proof 298.
10  Rule 31.2.
11  Rule 31.8(2). ‘In determining whether documents in the physical possession of a third party are in a

litigant’s control for the purposes of CPR 31.8, the court must have regard to the true nature of the rela-
tionship between the third party and the litigant’: North Shore Ventures Ltd v Anstead Holdings Inc [2012]
EWCA Civ 11, [2012] WTLR 1241 at [40].
12  Rule 31.8(1). 13  Rule 31.6. 14  Rule 31.7. 15  Rule 31.11(1). 16  Rule 31.21.
17  See Marlwood Commercial Inc v Kozeny [2004] EWCA Civ 798, [2004] 3 All ER 648.
60
The Cour se of E vidence

1.1.2  Criminal
1.1.2.1 Prosecution
The rationale for prosecution disclosure has been neatly summarized as follows:
Advance disclosure by the prosecution serves two main purposes. The first is its contribu-
tion to a fair trial looked at as a whole. The second is its contribution to the efficiency, includ-
ing the speed, of the pre-trial and trial process and to considerate treatment of all involved
in it. There are two categories of material held by the prosecution: the first is ‘evidence’, ie
that upon which the prosecution will rely to prove its case. The second is ‘unused material’
which encompasses all other information and material that the prosecution has seen or col-
lected. Early and full disclosure of all material in the first category and of relevant material
in the second is vital for good preparation for trial, narrowing disputed issues, and most
importantly to ensuring a fair trial. If the prosecution knows of or has information in its
possession which it is not using but which may help the defence secure an acquittal, justice
obviously demands disclosure. Failure of the prosecution to disclose such material has been
a major factor in overturning convictions, often after the defendant has spent many years
in jail, so it is imperative that the right decision on disclosure is made by the prosecution.18
As the quotation suggests, the possible duties on the prosecution to disclose material to
the defence fall into two categories. First, the prosecution has a duty in certain cases to
disclose its case. The position has been succinctly summarized by Leng:
For the most serious cases which are tried before a judge and jury in the Crown Court,
disclosure of the prosecution case [must] take[] place . . . Disclosure is made of written
versions of all witness statements or other evidence which the prosecution intends to
adduce at court.
For less serious cases, in which a choice is made to hold the trial in the local magis-
trates’ court, the prosecution must disclose its case but may choose whether to provide
full copies of the evidence or a summary of the case. For the least serious category of
offences which may be tried only in the magistrates’ court, there is no duty on the pros-
ecution to disclose the case prior to trial.19
Secondly, the Criminal Procedure and Investigations Act 1996 as amended, most notably
by the Criminal Justice Act 2003, 20 contains complex provisions on prosecution dis-
closure of unused material.21 These will be dealt with here in brief outline only.

18  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 10 para 115, acces-

sible via http://www.criminal-courts-review.org.uk/.

19  R Leng, ‘The Exchange of Information and Disclosure’, 208, in M McConville and G Wilson (eds), The

Handbook of the Criminal Justice Process (2002).

20  See generally D Corker, ‘Disclosure Stripped Bare’ [2004] 9 Archbold News 6; A  Heaton-Armstrong, D

Corker, and D Wolchover, ‘Disclosure of Unused Material by Prosecution Authorities and Third Parties’ in
A Heaton-Armstrong, E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness Testimony: Psychological,
Investigative and Evidential Perspectives (2006); P Keleher, ‘Showing Your Hand’ [2004] 4 Criminal Bar
Association News 10; D Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect
to its Duty of Disclosure: Partisan Advocate or Minister of Justice?’ (2006) 25 University of Tasmania Law Review
111; H Quirk, ‘The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme
Cannot Work’ (2006) 10 International Journal of Evidence and Proof 42; M Redmayne, ‘Criminal Justice Act
2003: (1) Disclosure and Its Discontents’ [2004] Criminal Law Review 441; V Smith, ‘Defence by Ambush’ (2004)
168 Justice of the Peace 24; P Wilcock and J Bennathan, ‘New Disclosure Rules for 2005’ (2004) 154 New Law
Journal 918; D Corker and S Parkinson, Disclosure in Criminal Proceedings (2009); Lord Justice Gross, Review of
Disclosure in Criminal Proceedings (2011); Judiciary of England and Wales, Magistrates’ Court Disclosure Review
(2014); R Taylor, M Wasik, and R Leng, Blackstone’s Guide to the Criminal Justice Act 2003 (2004) Ch 3.
21  See also Attorney General’s Office, Attorney General’s Guidelines on Disclosure:  For Investigators,

Prosecutors and Defence Practitioners (2013); Judiciary of England and Wales, Judicial Protocol on the
THE ADVERSARIAL TRADITION 61

The test of disclosure of unused prosecution material is contained in section 3 of

the Criminal Procedure and Investigations Act 1996. The prosecutor must ‘disclose
to the accused any prosecution material which has not previously been disclosed to
the accused and which might reasonably be considered capable of undermining the
case for the prosecution against the accused or of assisting the case for the accused’.22
‘Material must not be disclosed under this section to the extent that the court, on an
application by the prosecutor, concludes it is not in the public interest to disclose it and
orders accordingly.’23
‘The prosecutor must keep under review the question whether at any given time (and,
in particular, following the giving of a defence statement) there is prosecution material
which’ ought to be disclosed under the test of disclosure.24

1.1.2.2 Defence
The Criminal Procedure and Investigations Act 1996 (as amended) also contains
complex provisions on defence disclosure.25 The issue of defence disclosure has proved
somewhat controversial. Despite evidence that, prior to the introduction of defence
disclosure obligations, ‘ambush defences’ that were sprung at a late stage were by no
means widespread, 26 justifications have continued to be put forward for the recogni-
tion by the law of such obligations. Lord Justice Auld stated in the Criminal Courts
Review:
some contributors to the Review argued . . . that the interests of justice justify a right of
defence by ambush as a protection against abuse of public authority. In particular, they
suggested that a defendant may be justified in holding back his defence since it may give
the prosecution an opportunity before trial to strengthen or change a weak case or to
fabricate or falsify evidence to overcome it. To the extent that the prosecution may legit-
imately wish to fill possible holes in its case once issues have been identified by [defence
disclosure], I can understand why, as a matter of tactics, a defendant might prefer to
keep his case close to his chest. But that is not a valid reason for preventing a full and fair
hearing on the issues canvassed at the trial. A criminal trial is not a game under which
a guilty defendant should be provided with a sporting chance. It is a search for truth in
accordance with the twin principles that the prosecution must prove its case and that
a defendant is not obliged to inculpate himself, the object being to convict the guilty
and acquit the innocent. Requiring a defendant to indicate in advance what he disputes
about the prosecution case offends neither of those principles. Equally untenable is the
suggestion that defence by ambush is a permissible protection against the possibility of
dishonesty of police and/or prosecutors in the conduct of the prosecution. . . . a criminal
justice process cannot sensibly be designed on a general premise that those responsible
for law are likely to break it. In those cases where, unfortunately, the police or other
public officers are dishonest, the criminal trial process itself is the medium for protec-
tion and exposure.27

Disclosure of Unused Material in Criminal Cases (2013). For the position following conviction of a defend-
ant, see R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37, [2014] 3 WLR 77.
22  S 3(1)(a). 23  S 3(6). 24  S 7A(2).
25  See generally A Owusu-Bempah, ‘Defence Participation through Pre-Trial Disclosure:  Issues and
Implications’ (2013) 17 International Journal of Evidence and Proof 183; A Samuels, ‘Advance Disclosure by
Defence’ (2011) 175 Criminal Law and Justice Weekly 259.
26  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 98 n 29.
27  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 10 para 154, acces-

sible via http://www.criminal-courts-review.org.uk/.

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In cases which are to be tried on indictment, where ‘the prosecutor complies with section 3
or purports to comply with it’,28 ‘the accused must give a defence statement to the court
and the prosecutor’.29 It is notable therefore that this obligation arises even where the
prosecution simply purports to comply with its obligation to make disclosure. What
constitutes a ‘defence statement’ is clarified in section 6A:
(1)  . . . a defence statement is a written statement—
(a) setting out the nature of the accused’s defence, including any particular defences
on which he intends to rely,
(b) indicating the matters of fact on which he takes issue with the prosecution,
(c) setting out, in the case of each such matter, why he takes issue with the
prosecution,
(ca) setting out particulars of the matters of fact on which he intends to rely for the
purposes of his defence, and
(d) indicating any point of law (including any point as to the admissibility of evi-
dence or an abuse of process) which he wishes to take, and any authority on
which he intends to rely for that purpose.
(2) A defence statement that discloses an alibi must give particulars of it, including—
(a) the name, address and date of birth of any witness the accused believes is able to
give evidence in support of the alibi, or as many of those details as are known to
the accused when the statement is given;
(b) any information in the accused’s possession which might be of material assis-
tance in identifying or finding any such witness in whose case any of the details
mentioned in paragraph (a) are not known to the accused when the statement
is given.
(3) For the purposes of this section evidence in support of an alibi is evidence tending
to show that by reason of the presence of the accused at a particular place or in a
particular area at a particular time he was not, or was unlikely to have been, at the
place where the offence is alleged to have been committed at the time of its alleged
commission.
The obligation imposed by section 6A(2)(a), the Court of Appeal has noted,
is important to the Crown since it prevents ‘ambush’ alibi defences which were common
before the introduction of [a]‌ similar [obligation] in the Criminal Justice Act 1967. The
Crown need sufficient notice so that they can properly investigate alibis asserted; not
infrequently, seeing one witness triggers a series of other inquiries; hence the need for
timely disclosure of these details. Furthermore, full disclosure of the details of a truthful
alibi can be an important safeguard to the defence, because a timely investigation can lead
to the prosecution being discontinued. . . .
The statutory obligation to give the name and address of an alibi witness is triggered by
the defendant’s belief that the witness is able to give evidence in support of the alibi. It is
not necessary that the alibi witness can give such evidence let alone that he or she is also
willing to do so.30

28  S 5(1)(b).
29  S 5(5). See generally R L Denyer, ‘The Defence Statement’ [2009] Criminal Law Review 340.
30  In re Joseph Hill & Co [2013] EWCA Crim 775, [2014] 1 WLR 786 at [32], [34].
THE ADVERSARIAL TRADITION 63

Additionally, section 6C31 provides:

(1) The accused must give to the court and the prosecutor a notice indicating whether he
intends to call any persons (other than himself) as witnesses at his trial and, if so—
(a) giving the name, address and date of birth of each such proposed witness, or as
many of those details as are known to the accused when the notice is given;
(b) providing any information in the accused’s possession which might be of mate-
rial assistance in identifying or finding any such proposed witness in whose case
any of the details mentioned in paragraph (a) are not known to the accused when
the notice is given.
(2) Details do not have to be given under this section to the extent that they have already
been given under section 6A(2).
Where one of a number of specified failures in relation to disclosure by the accused has
occurred or where the accused at trial acts inconsistently in some way with the defence
disclosure, it is possible that ‘the court or any other party may make such comment as
appears appropriate’,32 and that ‘the court or jury may draw such inferences as appear
proper in deciding whether the accused is guilty of the offence concerned’.33 The accused
is not to be convicted solely on such an inference.34

1.2  Orality
Orality is one principal feature of the adversarial model. Heavy reliance is placed in the
Anglo-American trial process, and particularly in criminal trials, on the oral testimony
of witnesses. There are said to be substantial benefits associated with having witnesses
testify publicly in open court. It is said, in particular, that observation of a witness’s
demeanour35 provides a good indication of the reliability of his or her testimony:
All of us know that, in every-day life, the way a man behaves when he tells a story—his
intonations, his fidgetings or composure, his yawns, the use of his eyes, his air of candor
or of evasiveness—may furnish valuable clues to his reliability. Such clues are by no means
impeccable guides, but they are often immensely helpful.36
The assumption, then, is that a person’s demeanour while stating a fact provides valuable
clues about whether he or she is being truthful, whether he or she perceived the fact cor-
rectly, and whether his or her memory is functioning effectively. The extent, however, to
which this assumption actually reflects reality is a matter of speculation. Wellborn has
reviewed a considerable body of experimental evidence relating to the utility of demean-
our in indicating unreliability.37 By and large, the experimental research has revealed

31  See generally A  Edwards, ‘Criminal:  Defence Witness Notices’, Law Society’s Gazette, 6 May 2010

(online); M Stevenson, ‘Showing Your Hand’ [July 2010] Counsel 16.

32  S 11(5)(a). 33  S 11(5)(b).
34  S 11(10). See generally D Ormerod, ‘A Further Review of Disclosure’ [2013] Criminal Law Review 97;

C Taylor, ‘The Disclosure Sanctions Review: Another Missed Opportunity?’ (2013) 17 International Journal
of Evidence and Proof 272; Lord Justice Gross and Lord Justice Treacy, Further Review of Disclosure in
Criminal Proceedings: Sanctions for Disclosure Failure (2012).
35  On evidence of out-of-court demeanour, see R v Keast [1998] Crim LR 748.
36  J Frank, Courts on Trial: Myth and Reality in American Justice (1950) 21.
37  O G Wellborn III, ‘Demeanor’ (1991) 76 Cornell Law Review 1075. See also J Allan, ‘The Working

and Rationale of the Hearsay Rule and the Implications of Modern Psychological Knowledge’ (1991) 44
Current Legal Problems 217, 225–6; P Cooper, ‘Face Value’ [Nov 2013] Counsel 28; L Re, ‘Oral v Written
64
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that demeanour is of little benefit to ordinary observers in assessing whether a person is

untruthful. First, observation of facial behaviour appears to be of little value, and there is
indeed some evidence which suggests that such observation actually decreases the accu-
racy of lie detection. Secondly, little assistance would appear to be gained from listening
to the voice of the respondent, as subjects who merely read transcripts performed just as
well as, or even better than, those who heard recordings of the respondent’s voice. Finally,
there is no compelling evidence that lying is accompanied by distinctive body behaviour
which can be discerned by observers.38 The experimental research has also revealed that
demeanour may be of even less assistance in the assessment of the accuracy of a person’s
perceptions and memory.39 Thus Wellborn concludes that, consistently, the experiments
have demonstrated that the capacity of ordinary people to detect unreliability by observ-
ing demeanour is simply a myth.40
In the light of such considerations, the question arises whether the reliance currently
placed on oral testimony is misplaced, and whether more emphasis should be placed
instead on preparation of evidence in advance of trial. Detailed discussion of this is
beyond the scope of this book. It is certainly possible, however, to argue that allowing
freer admissibility in evidence of written statements prepared prior to trial would have
the advantage of addressing the problem of overawed witnesses who do not ‘give their
best’ in the courtroom. It has been noted41 that although court proceedings are generally
becoming increasingly user friendly, ‘every barrister has had the problem of the witness
who gave his or her statement confidently in the barrister’s chambers, forgetting vital
aspects in the witness box’. And while it is usually possible to elicit these aspects from the
witness eventually, the experience of doing so may be a time-consuming and unpleasant
one. On the other hand, concern has been expressed that written statements, because
of the involvement of lawyers in their preparation, are likely to be ‘adulterated’ by such
involvement. A misleading sense of structure and order, and hence a misleading sense of
respectability and persuasiveness, might be brought to the evidence.42 Of course, it may
be possible to conceive of proposals for reform which ensure that a new set of problems

Evidence: The Myth of the “Impressive Witness”’ (1983) 57 Australian Law Journal 679; J R Spencer, ‘Orality
and the Evidence of Absent Witnesses’ [1994] Criminal Law Review 628, 637.
38
  See the summary in O G Wellborn III, ‘Demeanor’ (1991) 76 Cornell Law Review 1075, 1088. For details
see O G Wellborn III, ‘Demeanor’ (1991) 76 Cornell Law Review 1075, 1078–88. See also T Bingham, ‘Assessing
Contentious Eyewitness Evidence: A Judicial View’ in A Heaton-Armstrong, E Shepherd, G Gudjonsson, and
D Wolchover (eds), Witness Testimony: Psychological, Investigative and Evidential Perspectives (2006); M Green,
‘Credibility Contests: The Elephant in the Room’ (2014) 18 International Journal of Evidence and Proof 28;
A M Qureshi, ‘Relying on Demeanour Evidence to Assess Credibility during Trial: A Critical Examination’
(2014) 61 Criminal Law Quarterly 235; M Stone, ‘Instant Lie Detection? Demeanour and Credibility in Criminal
Trials’ [1991] Criminal Law Review 821; A Vrij, ‘Detecting Deception in Legal Contexts’ in A Heaton-Armstrong,
E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness Testimony:  Psychological, Investigative and
Evidential Perspectives (2006); P Ekman, Telling Lies: Clues to Deceit in the Marketplace, Politics, and Marriage
(1992) 291–2; J McEwan, Evidence and the Adversarial Process:  The Modern Law (2nd ed 1998)  107; A  Vrij,
Detecting Lies and Deceit: The Psychology of Lying and the Implications for Professional Practice (2000).
39  O G Wellborn III, ‘Demeanor’ (1991) 76 Cornell Law Review 1075, 1088–91.
40  O G Wellborn III, ‘Demeanor’ (1991) 76 Cornell Law Review 1075, 1104. See also J McEwan, The Verdict

of the Court: Passing Judgment in Law and Psychology (2003) 105: ‘Although laboratory studies . . . have limited
generalisability to court proceedings, there has emerged sufficient data on lying behaviour severely to under-
mine belief in demeanour as a clue to honesty. “Body language” appears to mislead as much as it informs.’
As has been noted: ‘Law and psychology can be uneasy partners. The law has traditionally devised its own
rules of human behaviour and created its own norms for interpreting that behaviour’ (P McClellan, ‘Who
is Telling the Truth? Psychology, Common Sense and the Law’ (2006) 80 Australian Law Journal 655, 657).
41  P W Young and C D Curtis, ‘Oral or Written Evidence?’ (1997) 71 Australian Law Journal 459, 460.
42  P W Young and C D Curtis, ‘Oral or Written Evidence?’ (1997) 71 Australian Law Journal 459, 461–5.
THE ADVERSARIAL TRADITION 65

is not introduced. For example, it may be possible to introduce a pre-trial procedure

whereby a neutral official has the duty, as soon as possible after the event in question, to
elicit the story of a witness and record it, preferably audibly or visually.43
In civil proceedings the principle of orality may be regarded as having been substan-
tially eroded. Rule 32.2(1)(a) of the Civil Procedure Rules pays lip-service to the principle
of orality by prescribing a ‘general rule’ that, at trial, ‘any fact which needs to be proved by
the evidence of witnesses is to be proved . . . by their oral evidence given in public’. This is
subject, however, to the importance that is accorded to the use of witness statements.44 ‘A
witness statement is a written statement signed by a person which contains the evidence
which that person would be allowed to give orally.’45 ‘The court will order a party to serve
on the other parties any witness statement of the oral evidence which the party serving
the statement intends to rely on in relation to any issues of fact to be decided at the trial.’46
A party who has served a witness statement and wishes to rely on the evidence of the wit-
ness ‘must call the witness to give oral evidence unless the court orders otherwise or he
puts the statement in as hearsay evidence’.47 Significantly, however, the witness’s witness
statement is to stand as his or her evidence-in-chief unless the court orders otherwise.48
The witness ‘may with the permission of the court (a) amplify his witness statement; and
(b) give evidence in relation to new matters which have arisen since the witness statement
was served on the other parties’.49 Permission will be given only if the court ‘considers
that there is good reason not to confine the evidence of the witness to the contents of his
witness statement’.50

1.3  A ‘Neutral’ Judge
1.3.1  Calling Witnesses
1.3.1.1  Civil Proceedings
In civil proceedings the principle that it is the responsibility of the parties to decide what
witnesses to call would appear to be adhered to strictly. Thus it has been held that ‘it is cer-
tainly not the law, that a judge, or any person in a judicial position, such as an arbitrator,
has any power himself to call witnesses to fact against the will of either of the parties’.51
The order in which witnesses are called would also appear to be completely within the
discretion of the parties.52

1.3.1.2  Criminal Proceedings

In criminal trials,53 the responsibility for calling witnesses rests primarily with the
parties. Generally speaking, the prosecution should secure the attendance of all wit-
nesses whose statements have been served upon the defence as part of the prosecution
case and whose evidence would not be admissible by way of an exception to the hearsay
rule.54 These witnesses should then be called to testify (or at least called and tendered for

43  L Re, ‘Oral v Written Evidence:  The Myth of the “Impressive Witness”’ (1983) 57 Australian Law

Journal 679, 689. See further Chapter 11.

44  See generally G Exall, ‘Civil Litigation Brief’ (2001) 145 Solicitors’ Journal 578.
45  Rule 32.4(1). 46  Rule 32.4(2). 47  Rule 32.5(1). On hearsay evidence see Chapter 11.
48  Rule 32.5(2). 49  Rule 32.5(3). 50  Rule 32.5(4).
51  In re Enoch and Zaretzky, Bock & Co [1910] 1 KB 327, 333. See also Briscoe v Briscoe [1968] P 501, 505.
52  Briscoe v Briscoe [1968] P 501, 505.
53  See generally R v Russell-Jones [1995] 1 Cr App R 538; R v Brown [1997] 1 Cr App R 112. See also R v

Gunden [1997] Crim LR 903.

54  See the discussion of the hearsay rule in Chapter 11.
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cross-examination55), unless it is considered that the witness’s evidence would be unwor-

thy of belief. This would be the case if the evidence is inconsistent with, or contrary to,
the prosecution case. The prosecution should not refrain from calling a witness merely
because his or her evidence would not fit in exactly with the case that the prosecution is
seeking to prove.56 In the Crown Court Study, the judges stated that they were aware in 19
per cent of cases of at least one important witness who was not called by either the pros-
ecution or the defence.57
Unlike the position in civil trials, the judge in a criminal trial does have a limited power
to call witnesses in the interests of justice. The Court of Appeal has stated:
It is well established that the judge in a criminal trial has power to call a witness. It is,
however, a power which should be used most sparingly and rarely exercised . . . Where the
power is exercised, it should be for achieving the ends of justice and fairness.58
Similar principles apply in summary trials.59
As in civil trials, the order in which witnesses are to be called in a criminal trial is
generally a matter within the discretion of the parties. Where the defendant testifies,
however, he or she is to be called before the other defence witnesses, unless the court in its
discretion directs otherwise.60

1.3.2  Questioning Witnesses

The power of a judge to question witnesses is heavily circumscribed. The particular
importance of ensuring that the judge in a criminal trial is not seen by the jury to be
‘descending into the arena’ was emphasized by the Court of Appeal in a passage worth
quoting in full:
The judge is not an advocate. Under the English and Welsh system of criminal trials he is
much more like the umpire at a cricket match. He is certainly not the bowler, whose busi-
ness it is to get the batsman out. If a judge, without any conscious intention to be unfair,
descends into the forum and asks great numbers of pointed questions of the accused when
he is giving his evidence in-chief, the jury may very well get the impression that the judge
does not believe a word that the witness is saying and by putting these pointed questions,
to which there is sometimes only a lame answer, blows the evidence out of the water dur-
ing the stage that counsel ought to be having the opportunity to bring the evidence of the
accused to the attention of the jury in its most impressive pattern and shape. The impor-
tance of counsel having that opportunity is not diminished—indeed it is enhanced—if the
evidence emerging in-chief is a story that takes a bit of swallowing. If the judge, when the
witness is skating over thin ice, asks pointed questions so that the ice seems to crack, the
jury may well get the impression, however perfectly the judge may later sum up the case,
that the judge has seen through the evidence in-chief so that the jury do not take it very
seriously either.61

55  This process involves the witness being called and asked no substantive questions by the prosecu-

tion, but instead ‘tendered’ for cross-examination by the defence. This option may be taken if it is felt, for
example, that the witness’s evidence would not add much to the prosecution case.
56  See generally A Samuels, ‘The Prosecution Refuse to Call the Witness’ [1999] 2 Archbold News 7.
57  M Zander and P Henderson, The Royal Commission on Criminal Justice: Crown Court Study (1993)

110–11.
58  R v Grafton [1993] QB 101, 107. See also R v Tregear [1967] 2 QB 574; R v Roberts (1984) 80 Cr

App R 89.
59  R v Haringey JJ, ex p DPP [1996] 2 WLR 114.
60  Police and Criminal Evidence Act 1984, s 79. 61  R v Gunning (1980) 98 Cr App R 303, 306.
THE ADVERSARIAL TRADITION 67

The role of the judge is a delicate one:

It is sometimes a difficult task for a judge to know when to intervene and ask questions
during the course of a jury trial. It is plainly his duty to do so when he seeks to clarify what
may be a confusion in the evidence or some other matter. But a judge always has to be care-
ful when he intervenes that he must not cross the line and descend from the impartiality
of the bench into the arena, as it is often put, between the prosecution and the defence.62
In R v Frixou,63 the defendant was asked 189 questions in examination-in-chief, of which
106 were asked by the Recorder. A substantial number of the Recorder’s questions were
in the form of cross-examination and appeared hostile. The defendant appealed success-
fully against conviction on the ground that the Recorder’s frequent and apparently hostile
interventions denied him a fair trial. The Court of Appeal considered that the defendant
had not been treated fairly in the witness box and had been effectively deprived of the
opportunity to put his whole case before the jury in an ordered and structured form prior
to that case being tested by the rigours of cross-examination; the cross-examination by
the judge during the defendant’s examination-in-chief made it virtually impossible for
him to appear to best advantage before the jury. Accordingly, the conviction was unsafe.
To a similar effect is R v Roncoli,64 in which the appeal to the Court of Appeal was
allowed on the basis that, after the defendant had been examined in chief, the trial judge
effectively cross-examined him, asking hostile questions which when transcribed ran to
six pages of text. In these questions, the judge set out the law and pressed the defendant
on whether he still maintained that he had acted in self-defence, in terms which would
be expected from prosecution counsel (‘I am putting to you quite simply that the danger
[said to have been presented by the victim] had gone’). The Court of Appeal considered
that the impression the jury would have been left with was that the judge considered the
defendant to have no defence.65
The question ultimately is whether the judicial conduct has rendered the trial unfair. In
CG v UK the European Court of Human Rights held:
The Court observes in the first place that, although the evidence of S and of the applicant
herself in which the interventions occurred was doubtless the most important oral evi-
dence given in the trial, it made up only a part of the trial proceedings which occupied
three days. Further, while certain of these interventions of the trial judge were found by
the Court of Appeal to be without justification, others were found to be justified. While
the Court accepts the assessment of the Court of Appeal that the applicant’s counsel
found himself incommoded and disconcerted by these interruptions, it also agrees with
the Court of Appeal, from its own examination of the transcript of the evidence, that the
applicant’s counsel was never prevented from continuing with the line of defence that he
was attempting to develop either in cross-examination or through his own witness. In
addition, the Court attaches importance to the fact that the applicant’s counsel was able
to address the jury in a final speech which lasted for 45 minutes without interruption,
apart from a brief intervention which was found to be justified, and that the substance
of the applicant’s defence was reiterated in the trial judge’s summing-up, albeit in a very
abbreviated form.

62  R v Howes [2007] EWCA Crim 3219 at [27]. 63  [1998] Crim LR 352.
64  [1998] Crim LR 584.
65  See also R v Cole [2008] EWCA Crim 3234; R v Malcolm [2011] EWCA Crim 2069 at [112] (‘what we are

required to resolve is whether, looking at the trial process as a whole, the Recorder, albeit unintentionally,
crossed the line between appropriate and inappropriate judicial conduct by adopting or appearing to adopt
the role of the prosecutor. . . . in the end, this is a fact specific question)’.
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In these circumstances, the Court does not find that the judicial interventions in the
present case, although excessive and undesirable, rendered the trial proceedings as a
whole unfair.66
The Court of Appeal observed in Southwark LBC v Kofi-Adu, in relation to civil trials:
Nowadays, of course, first instance judges rightly tend to be very much more proactive
and interventionist than their predecessors . . . That said, however, it remains the case
that interventions by the judge in the course of oral evidence (as opposed to interventions
during counsel’s submissions) must inevitably carry the risk [of the judge’s vision being
clouded by the dust of the conflict]. The greater the frequency of the interventions, the
greater the risk; and where the interventions take the form of lengthy interrogation of the
witnesses, the risk becomes a serious one.
It is, we think, important to appreciate that the risk . . . does not depend on appearances,
or on what an objective observer of the process might think of it. Rather, the risk is that
the judge’s descent into the arena . . . may so hamper his ability properly to evaluate and
weigh the evidence before him as to impair his judgment, and may for that reason render
the trial unfair.67
In this case, ‘the manner in which the judge conducted the trial led to a failure on his
part to discharge his judicial function’:68 ‘the judge’s constant (and frequently conten-
tious) interventions during the oral evidence . . . served to cloud his vision and his judg-
ment to the point where he was unable to subject the oral evidence to proper scrutiny and
evaluation. . . . Indeed, it is impossible to tell from his judgment what (if any) assistance he
derived from the oral evidence which he heard, as opposed to the documentary evidence
and the witness statements.’69

2  The Course of the Trial

In a trial, the case for the prosecution (in a criminal trial) or claimant (in a civil trial)
is presented first. Thus, the claimant or prosecution calls its witnesses and questions
them. This process of questioning one’s own witnesses is known as examination-in-chief.
After a particular witness has been examined in chief, he or she may then be questioned
by any of the other parties in the case. This process of questioning witnesses called by
another party is known as cross-examination. After cross-examination, the witness
may be subjected to a re-examination by the party calling him or her. Questioning in
re-examination is generally limited to matters arising from the evidence given by the wit-
ness in cross-examination.70
After all the witnesses for the claimant/prosecution have been called, the case for
the claimant/prosecution is closed, and the defence then presents its case by calling its
own witnesses. In the same way, each witness is examined in chief, and may then be
cross-examined and re-examined. After the defence case is closed, closing speeches are
made by counsel for all the parties in the case, and, in a criminal trial with a jury, the trial

66  (2001) 34 EHRR 31 at [41], [42]. See also Michel v R [2009] UKPC 41, [2010] 1 WLR 879 at [28]: ‘Rarely

will the impropriety be so extreme as to require a conviction, however safe in other respects, to be quashed
for want of a fairly conducted trial process.’
67  [2006] EWCA Civ 281, [2006] HLR 33 at [145]–[146] (italics in original).
68  [2006] EWCA Civ 281, [2006] HLR 33 at [148].
69  [2006] EWCA Civ 281, [2006] HLR 33 at [147].
70  Prince v Samo (1838) 7 Ad & E 627, 112 ER 606.
The Cour se of the Trial 69

judge then sums up the case to the jury.71 In the course of the summing-up, the jury may
have to be instructed about a number of the evidential issues which have arisen in the case.
As seen in the course of this book, alleged misdirections to the jury on such issues constitute
a frequent ground of appeal.

2.1  Submissions of ‘No Case to Answer’

In a criminal trial, after the closure of the case for the prosecution and before the defence has
started to call its witnesses,72 a submission of no case to answer73 may be made by the defence.
If this submission is successful, the case will be dismissed and an acquittal directed. In con-
sidering a no-case submission in a trial with a jury, it must be borne in mind that, paradoxi-
cally, a holding that there is no case to answer may constitute a usurpation of the role of the
jury and, at the same time, protection of the accused from the danger of an unjust conviction.
The relevant principles to be applied in considering a no-case submission were clarified by
the Court of Appeal in R v Galbraith:
How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that
the crime alleged has been committed by the defendant, there is no difficulty. The judge will
of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenu-
ous character, for example because of inherent weakness or vagueness or because it is incon-
sistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution
evidence, taken at its highest, is such that a jury properly directed could not properly convict
upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the
prosecution evidence is such that its strength or weakness depends on the view to be taken of
a witness’s reliability, or other matters which are generally speaking within the province of
the jury and where on one possible view of the facts there is evidence upon which a jury could
properly come to the conclusion that the defendant is guilty, then the judge should allow the
matter to be tried by the jury.74
It is to be noted that the Crown Court Study found that submissions of no case to answer
were made in just under one-third of cases, and that 27 per cent of these submissions were
successful.75 The fact that the judicial power to withdraw cases needs to be exercised in a
small but significant minority of cases raises questions about the extent to which the Crown
Prosecution Service may be failing, in the exercise of its prosecutorial discretion, to weed out
cases unworthy of prosecution.76
The importance of the existence of such a judicial controlling power is well illustrated
by the decision of the Court of Appeal in R v McKenzie77 on confession evidence, examined

71  See generally N Madge, ‘Summing Up—A Judge’s Perspective’ [2006] Criminal Law Review 817.
72  See, however, Domestic Violence, Crime and Victims Act 2004, s 6(4), and R v Ikram [2008] EWCA
Crim 586, [2009] 1 WLR 1419.
73  See generally R Pattenden, ‘The Submission of No Case—Some Recent Developments’ [1982] Criminal

Law Review 558.
74  [1981] 1 WLR 1039, 1042 (italics in original). Clearly, a no-case submission should be heard in the

absence of the jury, although there may well be exceptional circumstances in which it would be appropri-
ate to accede to a defence request that it be heard in the jury’s presence. If the judge rules in favour of a
no-case submission on some charges but not on others, or rules in favour of the submission in respect of
some defendants but not others, the jury need simply be told that the decision was taken for legal reasons.
See generally Crosdale v R [1995] 1 WLR 864. For the position in Scotland see N W Orr, ‘“No Reasonable
Jury”’ [2011] Scots Law Times 9.
75  M Zander and P Henderson, The Royal Commission on Criminal Justice:  Crown Court Study

(1993) 124–5.
76  See P E Lewis, ‘The CPS and Acquittals by Judge: Finding the Balance’ [1997] Criminal Law Review 653.
77  [1993] 1 WLR 453.
70
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in Chapter 4. It is arguable, however, that the test in Galbraith is insufficiently wide. There is
no reason why it should be impermissible for a trial judge to withdraw a case from the jury in
circumstances where, if the defendant were to be convicted and were to appeal, the Court of
Appeal would be bound to quash the conviction.78 Thus the Runciman Royal Commission
‘recommend[ed] that the Court of Appeal’s decision in Galbraith be reversed so that a judge
may stop any case if he or she takes the view that the prosecution evidence is demonstrably
unsafe or unsatisfactory or too weak to be allowed to go to the jury’.79
It would appear that a trial judge has a responsibility to consider whether there is evi-
dence on which the jury can safely convict even in the absence of a no-case submission.
Thus, if at the conclusion of all the evidence in the case the judge is of the view that no
reasonable jury properly directed can safely convict, he or she should generally raise that
view for discussion with counsel in the jury’s absence, whether or not a no-case submis-
sion was made at the conclusion of the prosecution case. If, having heard submissions, the
judge remains of that view, then the case should be withdrawn from the jury.80
The Court of Appeal would appear to take the view that the erroneous rejection of a
submission of no case to answer should lead to a conviction being quashed irrespective of
what transpired during the remainder of the trial:
What if a submission is wrongly rejected but the defendant is cross-examined into admit-
ting his guilt? Should the conviction be said to be unsafe? We think it should. The defend-
ant was entitled to be acquitted after the evidence against him had been heard. To allow
the trial to continue beyond the end of the prosecution case would be an abuse of process
and fundamentally unfair.81
In civil trials without a jury, the position would appear to be different. The view is taken
that, because a judge acts as both trier of law and trier of fact, it would be inappropriate
for him or her to express an opinion about the evidence unless all the evidence in the case
has been called. Thus:
The disadvantages of entertaining a submission of no case to answer are plain and obvi-
ous . . . Essentially they are twofold. First, . . . the submission interrupts the trial process
and requires the judge to make up his mind as to the facts on the basis of one side’s evi-
dence only and applying the lower test of a prima facie case with the result that, if he rejects
the submission, he must then make up his mind afresh in the light of whatever further
evidence has been called and on the application of a different test. This, to say the least,
is not a very satisfactory procedure. The second disadvantage . . . is that if the judge both
entertains and accedes to a submission of no case, his judgment may be reversed on appeal
with all the expense and inconvenience resulting from the need to resume the hearing or,
more probably, retry the action.82
‘Rarely, if ever’, therefore, ‘should a judge trying a civil action without a jury entertain a
submission of no case to answer.’83

78  See generally A A S Zuckerman, The Principles of Criminal Evidence (1989) 56–8.
79  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 59. This is also advocated by
A Ashworth and M Redmayne, The Criminal Process (4th ed 2010) 342. Cf J D Jackson and S Doran, ‘Judge
and Jury: Towards a New Division of Labour in Criminal Trials’ (1997) 60 Modern Law Review 759, 768–9.
80  R v Brown, The Times, 13 Dec 1997.
81  R v Smith [1999] 2 Cr App R 238, 242. See generally V Tunkel, ‘When Safe Convictions Are Unsafely

Quashed’ (1999) 149 New Law Journal 1089.

82  Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 at [31]. See generally I R Scott,

‘Submission of No Case to Answer’ (2004) 23 Civil Justice Quarterly 96.

83  Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 at [32]. See also Alexander v Rayson

[1936] 1 KB 169, 178; Laurie v Raglan Building Co [1942] 1 KB 152; Young v Rank [1950] 2 KB 510; Graham v
Ques tioning one’ s own Witnesses 71

2.2  Adducing Evidence after Closure of Case

The claimant or prosecution may wish, after closing its case, to adduce further evi-
dence because of the emergence of defence evidence which contradicts its case. There
is a discretion to permit the claimant/prosecution to adduce further evidence in such
a manner.84 This may be permitted if the claimant/prosecution could not, before clos-
ing its case, have reasonably anticipated or foreseen the need to call that evidence. In
determining the issue, a court should take into account any pre-trial notice which the
claimant/prosecution may have received of defence evidence likely to be given which
would call for denial beforehand by way of adduction of evidence by the claimant/
prosecution. Equally, account should also be taken of the extent to which the claimant/
prosecution may have been put ‘on notice’ of the need to call the evidence by the nature
of the cross-examination of its witnesses. Because the test is one of reasonable anticipa-
tion, however, it is unnecessary for the claimant/prosecution ‘to take notice of fanciful
and unreal statements no matter from what source they emanate’.85 Presumably, the
imposition by the Criminal Procedure and Investigations Act 1996 of a general obliga-
tion on the defence to disclose its case prior to trial will have reduced the scope for the
exercise of the discretion to permit the prosecution to adduce further evidence after
closing its case.

3  Questioning one’s own Witnesses: Examination-in-Chief

and Re-Examination
To be examined now are the principles which govern the questioning of one’s own wit-
nesses, whether in the course of examination-in-chief or re-examination.

3.1  No Leading Questions

Generally speaking, it is impermissible to ask leading questions when examining one’s
own witness.86 A leading question is one which directly or indirectly suggests to the wit-
ness the answer to be given. A question is not a leading question merely because it is
susceptible of a ‘yes’ or ‘no’ answer. There are a number of exceptions to the rule against
leading questions, the more important of which are as follows. First, it is permissible,
and indeed probably desirable, to lead one’s own witness in relation to introductory and
uncontentious matters such as the witness’s name and address. Secondly, as will be seen
in Section 3.3, leading questions may be put to one’s own witness if he or she has been
declared ‘hostile’. Thirdly, leading questions may be put to a witness to draw his or her
attention to something which, or someone whom, he or she is being asked to identify.
Fourthly, the witness may be led if his or her inability to answer questions put in the usual
way arises from the complicated nature of the subject matter. Fifthly, where the witness
has apparently forgotten something, and all other attempts to jog his or her memory have

Chorley BC [2006] EWCA Civ 92, [2006] CP Rep 24. On the position in tribunals see Logan v Commissioners
of Customs & Excise [2003] EWCA Civ 1068, [2004] ICR 1.
84  R v Frost (1839) 9 Car & P 129, 159; 173 ER 771, 784; R v Scott (1984) 79 Cr App R 49, 51–2; R v Hutchinson

(1985) 82 Cr App R 51, 58–9.

85  R v Hutchinson (1985) 82 Cr App R 51, 59.
86  See generally Maves v Grand Trunk Pacific R Co (1913) 14 DLR 70, which contains a detailed treatment

of the issue, on which this section is based.

72
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failed, a leading question may be put. The procedure to be followed in such a situation has
been described thus:
A case which not infrequently arises in practice is that of a witness who recounts a con-
versation and in doing so omits one or more statements which counsel examining him is
instructed formed part of it. The common and proper practice is to ask the witness to repeat
the conversation from the beginning. It is often found that in his repetition he gives the lack-
ing statement—possibly omitting one given the first time. This method may be tried more
than once, and as a matter of expediency—so as to have the advantage of getting the whole
story on the witness’ own unaided recollection—counsel might pass on to some other sub-
ject and later revert to the conversation, asking him to again state it. But when this method
fails, the trial Judge undoubtedly ought to permit a question containing a reference to the
subject-matter of the statement which it is supposed has been omitted by the witness. If
this method fails, then and not till then—that is when his memory appears to be entirely
exhausted, the trial Judge should allow a question to be put to him containing the suppos-
edly omitted matter.87
It is said that, if leading questions were permitted on matters of substance, a questioner
would be tempted to question in such a manner as to elicit only such information as would
be favourable to his or her own side. In particular, witnesses who are suggestible or inexperi-
enced could be easily led into providing the testimony which the questioner wishes to elicit.88
It would seem that evidence elicited by means of an improper leading question is not
inadmissible per se, but will carry little or no weight.89

3.2  No ‘Oath-Helping’
As a general rule, it is impermissible for a party to lead evidence for the sole purpose of
bolstering the creditworthiness of its own witness.90 The adduction of such evidence may
be permitted, however, if there has been a challenge to the creditworthiness of the witness
by the opposing party. As will be seen later, this may occur where the other party intro-
duces evidence of the witness’s general reputation for lack of veracity.

3.3  Hostile Witnesses

An unfavourable witness is one who fails to ‘come up to proof’ or who gives evidence
which is unfavourable to the case of the party calling him or her. Where this has
occurred, the party calling the witness may not call evidence specifically to discredit
the witness, but may call evidence which is inconsistent with or which contradicts the
evidence given by this witness.91 The Uniform Evidence Acts in Australia go further by
permitting the party calling an unfavourable witness to cross-examine that witness with
the leave of the court.92

87  Maves v Grand Trunk Pacific R Co (1913) 14 DLR 70, 77.

88  See, however, A Keane and R Fortson, ‘Leading Questions—A Critical Analysis’ [2011] Criminal Law
Review 280, 294:  ‘Most of the principal reasons traditionally given for the rule against leading are now
invalid or weak.’
89  Moor v Moor [1954] 1 WLR 927, 928.
90  R v Hamilton, The Times, 25 July 1998. See generally C Crinion, ‘Adducing the Good Character of

Prosecution Witnesses’ [2010] Criminal Law Review 570.

91  Ewer v Ambrose (1825) 3 B & C 746, 750; 107 ER 910, 911–12.
92  S 38(1)(a). See generally M Hinton and N Schwarz, ‘Practice Note:  The Hostile or Unfavourable

Witness’ (2008) 27 University of Tasmania Law Review 229; T H Smith and O P Holdenson, ‘Comparative
Evidence: The Unhelpful Witness’ (1998) 72 Australian Law Journal 720.
Ques tioning one’ s own Witnesses 73

A hostile witness,93 on the other hand, is one who shows no desire to tell the truth. The
question of whether a witness is hostile94 is a question of law. Hostility
may be demonstrated by the witness’s manner and demeanour alone. Thus a witness
who declines to answer questions at all, or repeatedly says ‘I can’t remember’ . . . may be
treated as hostile . . . On the other hand, the hostility may be demonstrated by inconsist-
ency between the witness’s evidence and a prior statement . . . The inconsistency need not
take the form of a flat contradiction.95
Such factors as the witness’s demeanour or the fact that the evidence being given by the
witness is inconsistent with an earlier statement made out of court by the witness, consid-
ered in isolation or even together, do not, however, automatically signify hostility.96 For
example, the witness may be able to provide a legitimate explanation for the inconsistency.
Once a witness has been declared hostile,97 the party calling the witness has a
common law right to cross-examine that witness,98 in accordance with the rules of
cross-examination to be examined in Section 4.99 In addition, section 3 of the Criminal
Procedure Act 1865 (‘Lord Denman’s Act’), which applies to both criminal and civil pro-
ceedings, provides:
A party producing a witness shall not be allowed to impeach his credit by general evi-
dence of bad character; but he may, in case the witness shall in the opinion of the judge
prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has
made at other times a statement inconsistent with his present testimony; but before such
last-mentioned proof can be given the circumstances of the supposed statement, sufficient
to designate the particular occasion, must be mentioned to the witness, and he must be
asked whether or not he has made such statement.100
‘Adverse’ in section 3 ‘means “hostile” rather than merely “unfavourable”’.101 Thus,
section 3 permits the party calling the hostile witness to contradict that witness by
other evidence—a strategy which, we have seen, is also available in relation to unfavour-
able witnesses. More importantly, section 3 also permits the party, with the leave of the
judge, to prove to the trier of fact that a previous inconsistent statement102 was made. The
circumstances of the supposed statement must first be put carefully103 to the witness
in cross-examination, and the witness asked whether he or she made such a statement.

93  See generally M Newark, ‘The Hostile Witness and the Adversary System’ [1986] Criminal Law

Review 441; R Pattenden, ‘The Hostile Witness’ (1992) 56 Journal of Criminal Law 414.
94  ‘Although unusual for an application to treat a witness as hostile to be made in re-examination,

such an application may be made at any time’: R v Greene [2009] EWCA Crim 2282 at [67].
95  R v Jobe [2004] EWCA Crim 3155 at [66]. 96  R v Maw [1994] Crim LR 841.
97  That the hostile/unfavourable distinction may be a fine one was acknowledged in R v Greene [2009]

EWCA Crim 2282 at [67]: ‘There will be borderline cases whether a witness is hostile or merely unfavour-
able . . . But this is quintessentially a decision for the judge who has heard the evidence and is best placed
to assess the demeanour of the witness and his animus. It seems to us that it is the sort of decision with
which this court should be very loathe [sic] to interfere.’ For Canadian discussion see D M Paciocco,
‘Confronting Disappointing, Hostile and Adverse Witnesses in Criminal Cases’ (2012) 59 Criminal Law
Quarterly 301.
98  R v Thompson (1976) 64 Cr App R 96, 99.
99  As will be seen, one of the features of cross-examination is that leading questions may be asked of

the witness.
100  Italics added.
101  R v Jobe [2004] EWCA Crim 3155 at [66]. See also Greenough v Eccles (1859) 5 CB (NS) 786, 141 ER

315, discussing the forerunner to s 3.

102  See generally A Samuels, ‘Inconsistent Statements’ (2004) 168 Justice of the Peace 873.
103  R v Dat [1998] Crim LR 488.
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If the witness admits to having done so, and adopts the contents of the whole or part of
the previous statement, then whatever is adopted will effectively become part of the wit-
ness’s in-court testimony.104 If, however, the witness denies having made the statement,
then the making of the statement may be proved to the trier of fact under section 3.
The general effect of section 119 of the Criminal Justice Act 2003 is that all such pre-
vious inconsistent statements may now not only be used for the purposes of ‘discred-
iting’ the witness, but also become evidence of any matters stated in them.105 In civil
proceedings, the Civil Evidence Act 1995 permits such statements to be admitted as evi-
dence of the facts contained in them, so long as the requirements of the Act (discussed in
Chapter 11) are satisfied.
The Court of Appeal has cautioned that, ‘save possibly in the most exceptional cases,
once a witness has been treated as hostile some warning should be given to the jury about
approaching his evidence with caution. The nature of the warning will obviously be
dependent on the particular facts of the case.’106

3.4  Refreshing Memory in Criminal Cases

3.4.1  In Court
At common law it was permissible for a witness to refresh his or her memory, while giving
evidence in court, by referring to a document either made or verified by him- or herself
‘contemporaneously’, that is at the same time as or soon after the events described. The
most significant application of the rule related to police officers’ notebooks. The rule was
criticized for excluding other similarly reliable sources which failed the test of contempo-
raneity because witnesses in general, unlike police officers, are not trained to note down
the details of significant events at the earliest opportunity. The common law rule is now
reformed and replaced by section 139 of the Criminal Justice Act 2003.107 Section 139
provides:
(1) A person giving oral evidence in criminal proceedings about any matter may, at any
stage in the course of doing so, refresh his memory of it from a document made or
verified by him at an earlier time if—
(a) he states in his oral evidence that the document records his recollection of the
matter at that earlier time, and
(b) his recollection of the matter is likely to have been significantly better at that time
than it is at the time of his oral evidence.
(2) Where—
(a) a person giving oral evidence in criminal proceedings about any matter has pre-
viously given an oral account, of which a sound recording was made, and he
states in that evidence that the account represented his recollection of the matter
at that time,

104  R v Maw [1994] Crim LR 841.

105  ‘The effect of s 119(1) is clear:  it renders previous inconsistent statements made by a witness evi-
dence’: R v Billingham [2009] EWCA Crim 19, [2009] 2 Cr App R 20 at [60]. There is, however, a discretion
not to permit a statement to be used as evidence of the matters stated in it: R v Coates [2007] EWCA Crim
1471, [2008] 1 Cr App R 3.
106  R v Greene [2009] EWCA Crim 2282 at [79].
107  See generally R Taylor, M Wasik, and R Leng, Blackstone’s Guide to the Criminal Justice Act 2003

(2004) 167–70.
Ques tioning one’ s own Witnesses 75

(b) his recollection of the matter is likely to have been significantly better at the time
of the previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter
from that transcript.
This represents a substantial loosening of the (admittedly liberally interpreted108) com-
mon law position, as it no longer requires the making or verification of the document to
have been contemporaneous with the occurrence of the relevant matter.
There is no requirement inherent in section 139 that ‘the witness should first be shown
to stumble in his evidence by reference to a faulty memory’.109

3.4.2  Status of the Memory-Refreshing Document

There are a number of situations in which a memory-refreshing document may become
evidence in the case and therefore an exhibit. The more important of these are the
following.
• Where a witness has ‘refreshed memory’ from a document, the opposing party may
ask to inspect the document and may cross-examine the witness on the document.
The judge may let the jury have copies of the document if this would assist them
in following the cross-examination.110 If in the course of cross-examining on the
memory-refreshing document, the cross-examiner confines him- or herself to the
parts of the document which the witness has used to refresh memory, then the party
calling the witness cannot require the document to be treated as evidence in the
case. If, however, the cross-examiner strays into parts of the document which the
witness has not used to refresh memory, this entitles the party calling the witness
to insist that these parts of the document be treated as evidence in the case.111 In
criminal cases such evidence would now, by virtue of section 120(3) of the Criminal
Justice Act 2003,112 not only go to the creditworthiness of the witness (to demon-
strate consistency) but also be admissible to establish the truth of those parts of
the document. It would be admissible for this purpose in civil cases, provided that
the relevant requirements of the Civil Evidence Act 1995 (examined in Chapter 11)
are satisfied. Of course, even though parts of a memory-refreshing document may
become liable to be treated as evidence as a result of cross-examination by the oppos-
ing party, the judge retains a discretion not to allow the document to go before the
jury if this could result in prejudice to the defendant.113
• A record in a memory-refreshing document may also be treated as evidence in the
case if the cross-examining party adduces this in evidence to discredit the witness
by demonstrating its inconsistency with the witness’s testimony.114
• Where an allegation is made that a record in a document which a witness has used
to refresh memory was concocted, the party calling the witness is entitled to put
the record in evidence, in order to rebut the allegation by establishing the record’s

R v Gordon [2002] EWCA Crim 01.

108 

R v Mangena [2009] EWCA Crim 2535, (2009) 174 JP 67 at [7]‌.

109 
110  R v Sekhon (1986) 85 Cr App R 19, 22–3.
111  R v Britton [1987] 1 WLR 539, 541–2. See also Gregory v Tavernor (1833) 6 Car & P 280, 281; 172 ER

1241, 1242; Senat v Senat [1965] P 172, 177.

112  See Section 3.5 and Chapter 11. 113  See R v Virgo (1978) 67 Cr App R 323.
114  R v Sekhon (1986) 85 Cr App R 19, 23.
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genuineness through demonstrating that it appears to be a contemporaneous record

which has not been altered subsequently.115

3.4.3  Out of Court

The courts take a very permissive attitude to the practice of allowing witnesses to refresh
memory out of court.116 It is reasoned that, if this were to be forbidden, the experience
of testifying would, especially if there has been a long time lapse between the alleged
offence and the trial, become more a test of memory than one of truthfulness, and diffi-
culties would be placed in the way of honest witnesses.117 In any event, a ban on refreshing
memory out of court is considered to be one which would be impossible for the courts to
enforce. The Court of Appeal has noted that
obviously it would be wrong if several witnesses were handed statements in circumstances
which enabled one to compare with another what each had said. But there can be no gen-
eral rule . . . that witnesses may not before trial see the statements which they made at some
period reasonably close to the time of the event which is the subject of the trial. Indeed,
one can imagine many cases, particularly those of a complex nature, where such a rule
would militate very greatly against the interests of justice.118
The fact that a witness has refreshed memory out of court is relevant, however, to the
weight to be accorded to that witness’s testimony. Thus,
if the prosecution is aware that statements have been seen by witnesses it will be appropri-
ate to inform the defence. But if, for any reason, this is not done, the omission cannot of
itself be a ground for acquittal . . . If the mere fact that the prosecution had not volunteered
the information were a bar to conviction, this would be an artificial and arbitrary rule
more appropriate to a game or a sporting contest than to a judicial process. The question
for the court is whether, in the event, the trial can be continued without prejudice or risk
of injustice to the defendant.119
While the willingness of the courts to permit refreshing memory out of court is under-
standable and, indeed, to be applauded, there is a danger that practice in the area may
become too unregulated. Perhaps the introduction of a Code of Practice governing prac-
tices and procedures in the area may be a desirable way forward.

3.5  Evidence of Previous Consistent Statements in Criminal Trials

The rule against previous consistent statements120 (also known as the rule against nar-
rative or the rule against self-corroboration) renders out-of-court statements by a wit-
ness which are consistent with his or her present testimony in court inadmissible in

115  R v Sekhon (1986) 85 Cr App R 19, 22.

116  See Lau Pak Ngam v R [1966] Crim LR 443; R v Richardson [1971] 2 QB 484; R v Westwell [1976] 2 All
ER 812. See generally M N Howard, ‘Refreshment of Memory out of Court’ [1972] Criminal Law Review 351.
117  The Court of Appeal has noted (R v Westwell [1976] 2 All ER 812, 814): ‘We have all, from time to time,

seen the plight of an apparently honest witness, subjected to captious questioning about minor differences
between his evidence in the witness box and the statement he made long ago and has never seen since,
although his tormentor has it in his hand and has studied it in detail. Although such cross-examination
frequently generates in the jury obvious sympathy with the witness and obvious irritation with the
cross-examiner, it must leave a witness who has come to court to do his honest best with a smarting sense
of having been treated unfairly.’
118  R v Richardson [1971] 2 QB 484, 490. 119  R v Westwell [1976] 2 All ER 812, 814–15.
120  See generally R N Gooderson, ‘Previous Consistent Statements’ [1968] Cambridge Law Journal 64.
Ques tioning one’ s own Witnesses 77

evidence.121 It is said that, were this not the case, potential witnesses would be tempted
to prepare to boost their creditworthiness at trial by mentioning relevant facts to as
many people as possible prior to trial.122 A  number of exceptions to the rule against
previous consistent statements are, however, recognized in criminal trials. First, there
are a number of situations in which a previous consistent statement will be admissible as
evidence of consistency and hence credit, and also admissible, by virtue of section 120
of the Criminal Justice Act 2003, as evidence of the truth of its contents. These situations
are as follows:
• The ‘previous statement by the witness is admitted as evidence to rebut a suggestion
that his oral evidence has been fabricated’ (section 120(2)). Detailed guidance on
this has been forthcoming from the Court of Appeal:
The mere fact that the witness has said substantially the same thing on a previous
occasion will not generally be a sufficient basis to adduce the previous statement when
the truthfulness of his evidence is put in issue. There must be something more—for
example, the absence on the earlier occasion of a factor, say personal dislike, which
is being advanced as a possible explanation for the falsity of his evidence in court.
However, when circumstances have changed in such a way, it may not matter that
they changed last week, last month or last year, provided that there is a qualitative
difference in circumstances, but substantial similarity between the two accounts.
There is no margin in the length of time. The touchstone is whether the evidence
may fairly assist the jury in ascertaining where the truth lies. It is for the trial judge
to preserve the balance of fairness and to ensure that unjustified excursions into self-
corroboration are not permitted, whether the witness was called by the prosecution
or the defence.123
• The statement is one ‘made by the witness in a document (a) which is used by him
to refresh his memory while giving evidence, (b) on which he is cross-examined,
and (c) which as a consequence is received in evidence in the proceedings’ (section
120(3)). The Court of Appeal has noted that ‘if a rereading of a previous out-of-
court document fails to refresh the witness’s memory when giving oral evidence
at the trial, . . . [i]‌t seems to us that . . . section 120(3) cannot apply to make admis-
sible as truth of the matters stated any or all of the statements made in the written
document’.124
• ‘The statement identifies or describes a person, object or place’ (section 120(5)), and
‘while giving evidence the witness indicates that to the best of his belief he made the
statement, and that to the best of his belief it states the truth’ (section 120(4)(b)). The
Court of Appeal considers that
in order to work out the precise scope of section 120(5) we think it is necessary
to look more closely at its purpose. The previous statement of a witness will have

R v Roberts [1942] 1 All ER 187; R v P (G R) [1998] Crim LR 663.

121 

See also Fox v GMC [1960] 1 WLR 1017, 1024–5: ‘All trials, civil and criminal, must be conducted
122 

with an effort to concentrate evidence upon what is capable of being cogent and . . . it does not help
to support the evidence of a witness, who is the accused person, to know that he has frequently told
other persons before the trial what his defence was. Evidence to that effect is therefore in a proper sense
immaterial.’
123  R v Athwal [2009] EWCA Crim 789, [2009] 1 WLR 2430 at [58]. See generally R Munday, ‘Athwal

and All That: Previous Statements, Narrative, and the Taxonomy of Hearsay’ (2010) 74 Journal of Criminal
Law 415.
124  R v Chinn [2012] EWCA Crim 501, [2012] 1 WLR 3401 at [47] (italics in original).
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identified or described a person, object or place that is connected with an alleged

offence or other relevant event. A description of a person, object or place that is
made in a vacuum is of no use in criminal proceedings. The description or identi-
fication has to be put in the relevant context because the person, or object or place
is being described or identified for a particular purpose in the criminal proceed-
ings. Thus the witness may say in the statement that it was Mr X who was at the
ABC Bar on a certain day at a certain time. That statement identifies Mr X in this
way because it is that identification at that place and time that is relevant; probably
to an alleged offence at the ABC Bar at a particular time. The same must be true
of an object and a place.125
• ‘The statement was made by the witness when the matters stated were fresh in his
memory but he does not remember them, and cannot reasonably be expected to
remember them, well enough to give oral evidence of them in the proceedings’
(section 120(6)); and ‘while giving evidence the witness indicates that to the best
of his belief he made the statement, and that to the best of his belief it states the
truth’ (section 120(4)(b)). An assessment of whether the witness cannot reasonably
be expected to remember the relevant matters well enough will, according to the
Court of Appeal,
depend (amongst other things) on the characteristics of this particular witness, the
nature of the particular incident, the circumstances in which it occurred and also
other factors such as what has happened to the witness between the time of the
incident and the trial. The judge has to take all relevant factors into account then
decide, objectively, whether that witness could reasonably be expected to remember
the relevant matters at the time of the trial well enough to give oral evidence of them
at the trial.126
• ‘The statement consists of a complaint made by the witness (whether to a person
in authority or not) about conduct which would, if proved, constitute the offence
or part of the offence’ (section 120(7)(c)), ‘the complaint was not made as a result
of a threat or a promise’ (section 120(7)(e)), ‘before the statement is adduced
the witness gives oral evidence in connection with its subject matter’ (section
120(7)(f)), and ‘while giving evidence the witness indicates that to the best of his
belief he made the statement, and that to the best of his belief it states the truth’
(section 120(4)(b)). While acknowledging that this situation ‘cover[s]‌ an area
very similar to that dealt with by the old common law rules relating to “recent
complaint” in sexual cases’,127 the Court of Appeal has confirmed that the
section 120 provisions should be interpreted without recourse to that old law.128
The Court has also clarified that there is nothing preventing the admission
under the provisions of evidence of more than one complaint by the alleged
victim of an offence.129
Described briefly in Section 3.5.1 is a further situation in which a previous consistent
statement will be admissible as evidence of both consistency and the truth of its con-
tents, that is, when it was made at about the same time that the event occurred.

125  R v Chinn [2012] EWCA Crim 501, [2012] 1 WLR 3401 at [57].
126  R v Chinn [2012] EWCA Crim 501, [2012] 1 WLR 3401 at [63].
127  R v O [2006] EWCA Crim 556, [2006] 2 Cr App R 27 at [17].
128  R v O [2006] EWCA Crim 556, [2006] 2 Cr App R 27 at [18].
129  R v O [2006] EWCA Crim 556, [2006] 2 Cr App R 27 at [21].
Ques tioning one’ s own Witnesses 79

3.5.1  Statements Admissible as Part of the Res Gestae

A previous consistent statement of a witness is admissible in evidence of the witness’s
consistency if it was made contemporaneously, or roughly contemporaneously, with a
relevant event.130 Such a statement is said to be admissible as part of the res gestae. It
would also be admissible as evidence of the truth of its contents, since, as will be seen
in Chapter 11, statements forming part of the res gestae are admissible in evidence as an
exception to the hearsay rule.
Finally, there are two situations in which a previous consistent statement will be admis-
sible as evidence of consistency, but not necessarily as evidence of the truth of its contents,
that is, when the statement is made on accusation or on discovery of incriminating articles.

3.5.2  Statements Made on Accusation

A purely inculpatory statement, or a partly inculpatory and partly exculpatory state-
ment, made by a suspect in response to an accusation may be admissible in evidence,
under the confession exception to the hearsay rule, for the truth of its facts.131 Where
the statement is purely exculpatory, however, it may be admissible, as an exception to
the rule against previous consistent statements, to prove consistency and hence support
the witness’s creditworthiness. The statement need not have been made on the witness’s
first encounter with the police but, the longer the time lapse between the first encounter
and the making of the statement, the less weight it carries, and the jury may be directed
accordingly. A ‘carefully prepared written statement to the police’ would be inadmissible
in evidence.132
It would appear that a statement made on accusation will be inadmissible in evidence if
the accused’s reaction has already been adequately proved by other evidence.133
A statement made on accusation that is admissible as evidence of consistency will
also be admissible as evidence of the truth of its contents if the ‘interests of justice’
test in section 114(1)(d) of the Criminal Justice Act 2003134 is satisfied.

3.5.3  Statements Made on Discovery of Incriminating Articles

Exculpatory statements made by an accused when incriminating articles were found in
his or her possession would be admissible in evidence, if the accused testifies to the same
effect at trial, of his or her consistency. They would also be admissible as evidence of the
truth of their contents if the ‘interests of justice’ test in section 114(1)(d) of the Criminal
Justice Act 2003135 is satisfied. In R v Abraham,136 it was argued at trial that some glass jars
which were found unconcealed in the defendant’s house, and which had been taken from
a shop, had been found by the defendant in a field. It was held that evidence was admis-
sible that the defendant had said to his neighbours, before suspicion existed or a search for
the property had been made, that the property had been found in a field.

3.6  Evidence of Previous Consistent Statements in Civil Trials

The position with respect to evidence of previous consistent statements in civil trials is
governed by the Civil Evidence Act 1995. Section 6(2) provides that such statements are

R v Fowkes, The Times, 8 Mar 1856.

130  131  See Chapter 4.

R v Pearce (1979) 69 Cr App R 365, 369–70. See also R v Storey (1968) 52 Cr App R 334; R v Donaldson
132 

(1976) 64 Cr App R 59.
133  R v Tooke (1989) 90 Cr App R 417. 134  See Chapter 11. 135  See Chapter 11.
136  (1848) 3 Cox CC 430.
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admissible in evidence either with the leave of the court or for the purpose of rebutting
an allegation of fabrication. Because the Civil Evidence Act 1995 has effectively abolished
the hearsay rule in civil proceedings, such statements will be admissible in evidence for
their truth,137 subject to the relevant provisions of the Act, discussed in Chapter 11, being
satisfied.

4  Cross-Examination
4.1  The Purposes of Cross-Examination
Cross-examination, described by Wigmore as ‘beyond any doubt the greatest legal
engine ever invented for the discovery of truth’,138 is said to constitute a powerful weapon
in exposing the possible unreliability of that witness’s testimony.139 The purpose of
cross-examination is twofold:  first, to elicit evidence supporting the cross-examining
party’s version of the facts, and, secondly, to discredit the evidence of the witness.
Evidence which is otherwise inadmissible does not become admissible by being put to a
witness in cross-examination.140
The two essential restrictions which apply to examination-in-chief do not apply to
cross-examination. In Parkin v Moon, Alderson B observed: ‘I apprehend you may put
a leading question to an unwilling witness on the examination in chief at the discretion
of the Judge; but you may always put a leading question in cross-examination, whether a
witness be unwilling or not.’141 Secondly, questions may be asked in cross-examination
which go solely to the creditworthiness of the witness.
Contrary to popular belief, the utility of cross-examination in ensuring the reliability
of evidence may be limited. Cross-examination may well be of little use in exposing a wit-
ness’s insincerity;142 ‘it is, in truth, quite doubtful whether it is not the honest but weak
or timid witness, rather than the rogue, who most often goes down under the fire of a
cross-examination’.143 It is also possible that the efficacy of cross-examination in exposing
the faulty perception by a witness of the events supposedly ‘witnessed’ may not be as high
as may be assumed.144 Additionally, suggesting facts to a witness in cross-examination
may actually distort, rather than assist, his or her memory.145

137  See s 6(1).

138  J H Wigmore (rev J H Chadbourn), Evidence in Trials at Common Law (Vol 5) (1974) 32.
139  See generally M Stone, ‘Criminal Trials: The Reliability of Evidence—Part 3’ (2009) 173 Criminal Law

and Justice Weekly 570.

140 In R v Gray, The Times, 9 Mar 1998, the Court of Appeal held that it was not appropriate to ask a

defendant in cross-examination to explain statements made against him by a co-defendant in a document

which, although admissible in evidence against the co-defendant, was inadmissible in evidence against
him. Any practice of conducting such cross-examination should not be continued.
141  (1836) 7 Car & P 408, 409; 173 ER 181, 181–2 (italics added).
142  T Finman, ‘Implied Assertions as Hearsay:  Some Criticisms of the Uniform Rules of Evidence’

(1962) 14 Stanford Law Review 682, 690; R C Park, ‘A Subject Matter Approach to Hearsay Reform’ (1987)
86 Michigan Law Review 51, 96; E Swift, ‘A Foundation Fact Approach to Hearsay’ (1987) 75 California
Law Review 1339, 1357 n 50. See also J Allan, ‘The Working and Rationale of the Hearsay Rule and the
Implications of Modern Psychological Knowledge’ (1991) 44 Current Legal Problems 217.
143  J W Strong (ed), McCormick on Evidence (4th ed 1992) 41.
144  E A  Scallen, ‘Constitutional Dimensions of Hearsay Reform:  Toward a Three-Dimensional

Confrontation Clause’ (1992) 76 Minnesota Law Review 623, 627 n 15.

145  Australian Law Reform Commission, Evidence (Vol 1) (Report No 26: Interim) (1985) [663]; Scottish

Law Commission (Scot Law Com No 149), Evidence: Report on Hearsay Evidence in Criminal Proceedings
(1995) [3.14]. Cf C Baksi, ‘Call for Witness Recall Education’, Law Society’s Gazette, 17 July 2008 (online).
Cross-E x amination 81

Where it is not possible to complete, or even commence, the cross-examination of a

witness who has been examined in chief, the trial judge would appear to have a discre-
tion to prevent the trial from proceeding altogether. In considering the issue, he or she
would need to consider all relevant factors. Thus, where there has in fact been substantial
cross-examination of the witness, and the evidence of the witness is strongly supported,
then it may be appropriate to let the trial proceed, especially if the jury is warned against
placing undue weight on the witness’s evidence.146 On the other hand, even a strong warn-
ing may not suffice if there has been no cross-examination at all, and the witness’s evi-
dence is unsupported.147

4.2  Limitations on Cross-Examination

The right to cross-examine is, naturally, subject to some limitations. As has been noted
in the House of Lords:
It is right to make due allowance for the irritation caused by the strain and stress of a long
and complicated case, but a protracted and irrelevant cross-examination not only adds
to the cost of litigation, but is a waste of public time. Such a cross-examination becomes
indefensible when it is conducted . . . without restraint and without the courtesy and con-
sideration which a witness is entitled to expect in a Court of law.148
In cross-examining a witness as to credit, what must be borne in mind is the witness’s
‘likely standing after cross-examination with the tribunal which is trying him or listen-
ing to his evidence’.149 There is an important difference, it has been said, between elicit-
ing material which sheds light on the background and general attitude of a witness, and
eliciting material which shows the witness actually not to have told the truth.150 Thus
cross-examination as to credit should be such that the imputation conveyed by the ques-
tions would, if true, seriously affect the opinion of the trier of fact of the witness’s credit-
worthiness. Questioning would be improper if the imputation conveyed relates to matters
which are so remote in time, or of such a character, that the imputation, if true, would
not affect, or would affect only slightly, the opinion of the trier of fact of the witness’s
creditworthiness. Questioning would also be improper if the importance of the imputa-
tion made against the witness is grossly disproportionate to the importance of his or her
evidence.151
Where cross-examination of a complainant of a sexual offence is concerned, section
41 of the Youth Justice and Criminal Evidence Act 1999 (examined in Chapter 13), which
places very substantial limitations on cross-examination as to credit (and indeed also
places restrictions on cross-examination as to facts in issue), must be borne in mind.
It is considered permissible to cross-examine a defendant in a criminal trial about
whether the defendant has any knowledge of why the complainant may have a motive
to lie: ‘The question permitted by the judge was, as it seems to us, admissible because it
was relevant. If there was anything known to the defendant which provided a reason for

146  See R v Stretton (1986) 86 Cr App R 7; R v Wyatt [1990] Crim LR 343.

147  See R v Lawless (1993) 98 Cr App R 342.
148  Mechanical and General Inventions Co and Lehwess v Austin and the Austin Motor Co [1935] AC

346, 360. See, however, T Henning, ‘Control of Cross-Examination—A Snowflake’s Chance in Hell?’
(2006) 30 Criminal Law Journal 133. See also Malik v Kalyan [2010] EWCA Civ 113 at [35]: ‘It is usually
good practice for a judge trying a civil claim to see where a line of questioning is or may be going before
stopping it.’
149  R v Sweet-Escott (1971) 55 Cr App R 316, 320. 150  R v Ellis [1998] Crim LR 660.
151  See Hobbs v Tinling [1929] 2 KB 1, 50–1.
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a complainant to lie, this would tend to undermine her credibility.’152 This is to be con-
trasted with the position in Australia, where the High Court of Australia has held that ‘it
is necessary to distinguish between cross-examination of a witness as to the motive of that
witness to lie and cross-examination of another witness designed to show that that witness
does not know of any fact from which to infer that the first witness had a motive to lie’.153
Thus, in Australia, while it is permissible for the defence to cross-examine a complainant
with a view to eliciting a motive to lie, it is generally impermissible for the prosecution
to cross-examine the accused to establish that the accused has no knowledge of any fact
from which it may be inferred that the complainant has a motive to lie. This is because the
fact that the accused has no such knowledge is considered to be typically of no relevance.
‘To ask an accused the question: “Why would the complainant lie?” is to invite the jury to
accept the complainant’s evidence unless some positive answer to that question is given by
the accused.’154

4.3  The Rule in Browne v Dunn

As a general rule, a party which fails to put a particular issue to a witness in
cross-examination of that witness cannot later invite the jury to reject the witness’s
evidence-in-chief on that issue, and to accept the cross-examining party’s version of the
issue.155 The rule, known as the rule in Browne v Dunn,156 has been referred to by the Privy
Council in the following terms:
Their Lordships have been referred to a number of authorities relating to the need, where
the court is invited to reject the testimony of a witness, and to accept evidence to a contrary
effect, to put the conflicting evidence to the witness whose testimony is attacked. Browne
v Dunn . . . is cited as authority for [the] proposition which is stated thus in the headnote:
‘If in the course of a case it is intended to suggest that a witness is not speaking the truth
upon a particular point, his attention must be directed to the fact by cross-examination
showing that that imputation is intended to be made, so that he may have an opportunity
of making any explanation which is open to him, unless it is otherwise perfectly clear that
he has had full notice beforehand that there is an intention to impeach the credibility of
his story, or (per Lord Morris) the story is of an incredible and romancing character.’
The principle, is of course, of particular importance in criminal cases . . .157

4.4  The Collateral-Finality Rule

4.4.1  The Rule
Subject to certain exceptions, the collateral-finality rule provides that, where cross-
examination goes solely to a collateral matter (typically, the creditworthiness of a witness),
the witness’s answers are to be treated as final. The cross-examining party may not there-
fore adduce evidence to rebut these answers.158 It is only where cross-examination goes to

152  R v B [2003] EWCA Crim 951, [2003] 1 WLR 2809 at [41]. Leave to appeal to the House of Lords was

refused: [2004] 1 WLR 13.
153  Palmer v R [1998] HCA 2 at [26]. 154  Palmer v R [1998] HCA 2 at [21].
155  See Browne v Dunn (1893) 6 R 67; R v Hart (1932) 23 Cr App R 202; R v Fenlon (1980) 71 Cr App R 307;

Wharf Properties Ltd v Eric Cumine Associates (1991) 29 Con LR 84.

156  (1893) 6 R 67.
157  Wharf Properties Ltd v Eric Cumine Associates (1991) 29 Con LR 84, 97–8.
158  ‘Where cross-examination is directed at collateral issues such as the credibility of the witness, as a

rule the answers of the witness are final and evidence to contradict them will not be permitted’: R v Edwards
[1991] 1 WLR 207, 215. See also R v Neale [1998] Crim LR 737.
Cross-E x amination 83

a fact in issue that the cross-examining party may call rebuttal evidence. Considerations
of convenience and practicality underlie this rule: in the interest of keeping the length
of trials within proper limits, there must obviously be some limit on the extent to which
exploration of answers given to questions asked in cross-examination on collateral mat-
ters should be permitted.159 ‘If we lived for a thousand years’ then unlimited exploration
might be possible, but as we do not ‘some line must be drawn’.160
The crucial issue, therefore, is to determine whether the cross-examination goes to
facts in issue, with the result that the collateral-finality rule has no application. That
determination is not, however, a straightforward one, as the distinction between rel-
evance to facts in issue and relevance to credit ‘is often difficult to draw’.161 R v Busby162
may be regarded as an illustration of the non-applicability of the collateral-finality
rule on the basis that the cross-examination went to a fact in issue. The appellant was
alleged to have made very damaging remarks to the police when interviewed about his
alleged offences. Two police officers were cross-examined to establish that one of them,
in the presence of the other, had threatened a potential defence witness to prevent him
from giving evidence. Both officers denied threatening this witness. The issue arose of
whether this witness could be called to testify about the officers’ visit to him. The Court
of Appeal held:
We are of the opinion that the learned judge was wrong to refuse to admit the evidence. If
true, it would have shown that the police were prepared to go to improper lengths in order
to secure the accused’s conviction. It was the accused’s case that the statement attributed
to him had been fabricated, a suggestion which could not be accepted by the jury unless
they thought that the officers concerned were prepared to go to improper lengths to secure
a conviction. . . . In the present case, the evidence, if true, would have indicated that the
officers were prepared to cheat in furtherance of the prosecution.163
There is considerable uncertainty, however, about whether the true basis of the deci-
sion in Busby was that the cross-examination went to facts in issue, with the result
that the collateral-finality rule was inapplicable. Can the question whether the officers
were prepared to go to improper lengths to secure the accused’s conviction really have
been regarded as a fact in issue? The decision in Busby has also been interpreted in the
following ways:
• The cross-examination did go to credit, but the ‘bias’ exception to the collateral-finality
rule (examined in Section 4.4.2.3) applied.164
• The cross-examination did go to credit, but there is a new exception to the
collateral-finality rule which allows evidence to be adduced showing the improper
lengths to which the police are prepared to resort to secure a conviction.165
R v Nagrecha is a decision in which the Court of Appeal clearly, though not unques-
tionably, held the collateral-finality rule to be inapplicable on the basis that the
cross-examination went to a fact in issue. The appellant was accused of indecent assault.

159  ‘The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue

from becoming submerged in a welter of detail’: R v Edwards [1991] 1 WLR 207, 215. See also R v Neale
[1998] Crim LR 737.
160  A-G v Hitchcock (1847) 1 Ex 91, 105; 154 ER 38, 44.
161  R v Edwards [1991] 1 WLR 207, 215. See also R v Busby (1981) 75 Cr App R 79, 82; R v Fahy [2002]

EWCA Crim 525.
162  (1981) 75 Cr App R 79. 163  (1981) 75 Cr App R 79, 82.
164  See R v Edwards [1991] 1 WLR 207. 165  See R v Funderburk [1990] 1 WLR 587.
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The defence cross-examined the complainant about allegations of sexual impropriety she
had made against other men. She denied having made these complaints. The Court of
Appeal held that the trial judge had erred in not permitting the defence to call evidence of
the making of the complaints: ‘Such evidence went not merely to credit, but to the heart
of the case, in that it bore on the crucial issue as to whether or not there had been any
indecent assault.’166 No explanation was provided of how evidence that complaints had
been made previously would be of relevance to the issue of whether there had been any
indecent assault in this case.
The law has recognized that injustice would result if the collateral-finality rule were to
be applied rigidly in all circumstances. Accordingly, there are five established exceptions
to the rule.

4.4.2  The Exceptions

4.4.2.1  Proof of Previous Inconsistent Statements
A cross-examiner may seek to discredit a witness by exposing the fact that the wit-
ness has made a previous inconsistent statement.167 The usual principles relating to
cross-examination as to credit, examined in Section 4.2, govern the question whether
a witness may be cross-examined on a previous inconsistent statement with a view to
discrediting that witness.168 If the witness denies having made the statement, then, as an
exception to the collateral-finality rule, it may be possible to lead evidence in rebuttal to
prove that the statement was in fact made. It is here that section 4 and, perhaps, section 5
of the Criminal Procedure Act 1865 come into play. Section 4 provides:
If a witness, upon cross-examination as to a former statement made by him relative to the
subject matter of the indictment or proceeding, and inconsistent with his present testi-
mony, does not distinctly admit that he has made such statement, proof may be given that
he did in fact make it; but before such proof can be given the circumstances of the sup-
posed statement, sufficient to designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made such statement.
Section 5 provides:
A witness may be cross-examined as to previous statements made by him in writing, or
reduced into writing, relative to the subject matter of the indictment or proceeding, with-
out such writing being shown to him; but if it is intended to contradict such witness by
the writing, his attention must, before such contradictory proof can be given, be called
to those parts of the writing which are to be used for the purpose of so contradicting
him: Provided always, that it shall be competent for the judge, at any time during the trial,
to require the production of the writing for his inspection, and he may thereupon make
such use of it for the purposes of the trial as he may think fit.
These provisions apply to both civil and criminal proceedings. Section 4 applies to state-
ments made either orally or in writing, while section 5 applies only to statements made
in writing. As can be seen, both sections 4 and 5 require that the previous statement, in
order to be able to be proved, must be ‘relative to the subject matter of the indictment or
proceeding’.
The Court of Appeal considered these principles relating to cross-examination on
a previous inconsistent statement in R v Funderburk.169 The appellant was accused of

166  [1997] 2 Cr App R 401, 410.

167  See generally A Samuels, ‘Inconsistent Statements’ (2004) 168 Justice of the Peace 873.
168  R v Funderburk [1990] 1 WLR 587. 169  [1990] 1 WLR 587.
Cross-E x amination 85

unlawful sexual intercourse with a 13-year-old girl. The girl described the first incident
in terms which clearly amounted to an account of the loss of her virginity. The defence
applied (1) to put to her that, prior to that incident, she had told a potential witness that
she had had intercourse with two other men and, if she denied this, (2) to call that witness
to testify to the contrary. The trial judge refused both applications. The Court of Appeal
held, first, that the complainant could have been cross-examined on her previous incon-
sistent statements:
It seems to us that the jury, having heard a graphic account from the child’s evidence-in-
chief as to how she had lost her virginity, might reasonably have wished to re-appraise
her evidence and her credibility if they had heard that on other occasions she had spoken
of experiences which, if true, would indicate that she could not have been a virgin at the
time of the incident she so vividly described. Her standing as a witness might have been
reduced.170
Secondly, the Court of Appeal held that, ‘on the likely scenario that the child had denied
making the inconsistent statements’,171 these statements could have been proved pursu-
ant to section 4. ‘It seems to us that on the way the prosecution presented the evidence
the challenge to the loss of virginity was a challenge that not only did the jury deserve to
know about on the basis that it might have affected their view on the central question of
credit, but was sufficiently closely related to the subject matter of the indictment for justice
to require investigation for the basis of such a challenge.’172
Where a previous inconsistent statement is given in evidence in criminal proceedings
under section 4 or section 5, it may now be used not only to discredit the witness but also,
by virtue of section 119 of the Criminal Justice Act 2003,173 as evidence of the truth of its
contents. In civil proceedings, the Civil Evidence Act 1995 permits such a statement to be
admitted as evidence of the facts contained in it, so long as the requirements of the Act,
discussed in Chapter 11, are satisfied.
Since section 5 provides that it is open to the judge to ‘make such use of that statement
for the purposes of the trial as he may think fit’, he or she is able, strictly speaking, to allow
the entire statement to go before the jury. It may, however, be preferable in appropriate
cases to permit the jury to see only that portion of the statement which relates to the mat-
ter on which the witness has been cross-examined.174

4.4.2.2  Previous Convictions

It is settled ‘that a conviction for any offence could be put to a witness by way of
cross-examination as to credit, even though the offence was not one of dishonesty’.175
Section 6 of the Criminal Procedure Act 1865, which applies to both civil and criminal
proceedings, provides that, if on being questioned as to whether he or she has any previ-
ous convictions a witness ‘either denies or does not admit the fact, or refuses to answer, it
shall be lawful for the cross-examining party to prove such conviction’.
The extent to which a witness can be discredited by means of his or her previous convic-
tions is subject to limitations. In the case of civil trials, section 4(1) of the Rehabilitation
of Offenders Act 1974 provides that evidence of ‘spent’ convictions is inadmissible. Under
section 7(3) of the same Act, however, such evidence is permissible where justice cannot

170  [1990] 1 WLR 587, 594. 171  [1990] 1 WLR 587, 595.

172  [1990] 1 WLR 587, 598 (italics added). 173  See Chapter 11.
174  See R v Beattie (1989) 89 Cr App R 302, 306.
175  Clifford v Clifford [1961] 1 WLR 1274, 1276.
86
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be done in the case without the evidence being admitted. Section 7(3) has been inter-
preted as giving judges a wide discretion in determining whether the strong presumption
against permitting cross-examination on ‘spent’ convictions, or admitting evidence of
such convictions, is rebutted. Thus, where it is sought to use a witness’s ‘spent’ convictions
to discredit that witness, the court should be satisfied that the witness’s creditworthiness
cannot be fairly assessed unless the evidence is admitted.176 It has also been noted that,
in a civil case where
the judge is himself the tribunal of fact . . ., if he rules that the evidence should not be
admitted, he has to put it out of his mind and decide the case without reference to it. This
is never an easy exercise, and . . . a considerable responsibility rests upon counsel . . . not
to seek leave to refer to previous convictions except in a case where it is clearly arguable
that they should be admitted under s 7(3). It would be wrong even to make an application
which had no realistic prospect of success.177
The most important limitation in criminal cases is provided by sections 100 and 101
of the Criminal Justice Act 2003, which, as will be seen in detail in Chapter 10, place
restrictions on the extent to which a witness in a criminal case may be cross-examined
on his or her previous convictions. It is to be noted that section 4(1) of the Rehabilitation
of Offenders Act 1974 has no application in criminal proceedings,178 but a Practice
Direction recommends that, ‘when considering . . . applications under the 2003 Act,
regard should always be had to the general principles of the Rehabilitation of Offenders
Act 1974’.179

4.4.2.3 Bias
As an exception to the collateral-finality rule, it is possible for evidence to be adduced that
a witness holds a bias against or in favour of a party or the cause of action. Such bias must
actually be demonstrated by the evidence. Thus, if in cross-examination a witness denies
having been offered a bribe by someone acting on behalf of one of the parties, rebuttal
evidence cannot be led to show that the witness was offered the bribe, since being offered
a bribe does not necessarily indicate bias. But a witness’s denial in cross-examination that
he or she took a bribe can be rebutted, since proof of the taking of the bribe would indicate
bias.180
In R v Mendy, while a detective was giving evidence at the appellant’s trial for assault,
a constable observed that a man in the public gallery was taking notes. This man then
left the court, and was seen by the constable and a court officer discussing the case with
the appellant’s husband. This was apparently in order that the husband could describe
more convincingly how he himself, rather than the appellant, had been responsible for
the assault. When the husband testified, he denied in cross-examination that the incident
with the man had occurred. The issue arose of whether the prosecution could call the
constable and court officer to give evidence in rebuttal. The Court of Appeal held that this
was possible, since the ‘bias’ exception to the collateral-finality rule applied: ‘The witness
was prepared to cheat in order to deceive the jury and help the defendant. The jury were
entitled to be apprised of that fact.’181

176  Thomas v Comr of Police [1997] 1 All ER 747. See C Manchester, ‘Admissibility of Spent Convictions

in Civil Cases:  Thomas v Commissioner of Police for the Metropolis’ (1997) 1(3) International Journal of
Evidence and Proof 152.
177  Thomas v Comr of Police [1997] 1 All ER 747, 765. 178  S 7(2)(a).
179  Criminal Practice Directions, [35A.2]. 180  See A-G v Hitchcock (1847) 1 Ex 91, 154 ER 38.
181  (1976) 64 Cr App R 4, 6.
Cross-E x amination 87

The issue of cross-examination of police witnesses for the purpose of eliciting evidence
of police malpractice182 was considered by the Court of Appeal in R v Edwards.183 This case
is significant for what it says about two matters. First, it provides guidance on the extent
to which a cross-examiner may seek to discredit a police witness by putting allegations of
malpractice to him or her. Secondly, if allegations which the cross-examiner is permitted
to put are denied by the witness, does an exception to the collateral-finality rule apply to
allow the denials to be contradicted? On the first matter, the Court of Appeal stated:
The police officers could certainly be cross-examined as to any relevant criminal offences
or disciplinary charges found proved against them. . . .
We do not consider that it would have been proper to suggest to the officer in the pre-
sent case that he had committed perjury or any other criminal offence by putting to him
that he had been charged but not yet tried. Nor do we think that complaints to the Police
Complaints Authority which have not been adjudicated upon would properly be the sub-
ject of cross-examination. It would not be proper to direct questions to an officer about
allegedly discreditable conduct of other officers, whether or not they happened to be serv-
ing in the same squad.
There remains the problem of other cases in which the witness has, so to speak, unsuc-
cessfully given evidence. . . .
 . . . The acquittal of a defendant in case A, where the prosecution case depended largely
or entirely upon the evidence of a police officer, does not normally render that officer
liable to cross-examination as to credit in case B. But where a police officer who has alleg-
edly fabricated an admission in case B, has also given evidence of an admission in case A,
where there was an acquittal by virtue of which his evidence is demonstrated to have been
disbelieved, it is proper that the jury in case B should be made aware of that fact. However,
where the acquittal in case A does not necessarily indicate that the jury disbelieved the
officer, such cross-examination should not be allowed. In such a case the verdict of not
guilty may mean no more than that the jury entertained some doubt about the prosecu-
tion case, not necessarily that they believed any witness was lying.184
On the second matter, the Court considered, distinguishing Busby, that no exception to the
collateral-finality rule would be applicable.185 Thus, should the police officers deny the alle-
gations of malpractice in cross-examination, it would not be possible for rebuttal evidence
to be called. The Court noted that Busby had been cited in R v Funderburk186 as falling under
an exception to the collateral-finality rule which permits evidence to be called showing
that the police are prepared to go to improper lengths to secure a conviction. The Court in
Edwards thought, however, that the ‘true basis’ of the decision in Busby ‘may well have been

182  See generally J Dein, ‘Police Misconduct Revisited’ [2000] Criminal Law Review 801.
183  [1991] 1 WLR 207. See generally R Pattenden, ‘Evidence of Previous Malpractice by Police Witnesses
and R v Edwards’ [1992] Criminal Law Review 549.
184  [1991] 1 WLR 207, 216–17. See also R v Meads [1996] Crim LR 519; R v Malik [2000] 2 Cr App R 8,

11–12 (‘There is . . . a balance to be struck between the need to make sure that points fairly to be made about
a police officer’s previous misconduct are before the jury when his credibility falls to be judged in a later
case and the need to avoid a smoke screen of unsubstantiated suspicion, innuendo and attempts to smear
unfairly. . . . If there is clear evidence that a police officer, whose credit and credibility are significant in the
case before the jury, has been guilty of serious malpractice on an earlier occasion, that necessarily dam-
ages his credibility when it falls to be judged on the second occasion, even though the malpractice alleged
on the second occasion is of a different kind. We do not therefore think that it is a ground for denying
cross-examination that the type of malpractice in issue is different. We do however think it necessary to
consider how significant in the case the police officer’s evidence is and what past misconduct he is shown to
have committed’); R v Twitchell [2000] 1 Cr App R 373. See also R v Foran [2014] EWCA Crim 2047.
185  [1991] 1 WLR 207, 220. 186  [1990] 1 WLR 587.
88
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the suggestion of bias against those particular defendants in that particular case’.187 In other
words, the decision in Busby should be viewed as an application of the ‘bias’ exception. It
was apparently considered by the Court in Edwards, however, that this exception would be
inapplicable where what was at issue was possible police malpractice in other cases. Such an
interpretation of the ‘bias’ exception would seem to confine it within rather narrow bounds.

4.4.2.4 Incapacity
Evidence of a witness’s incapacity is admissible as an exception to the collateral-finality rule:
If a witness purported to give evidence of something which he believed that he had seen
at a distance of 50 yards, it must surely be possible to call the evidence of an oculist to the
effect that the witness could not possibly see anything at a greater distance than 20 yards,
or the evidence of a surgeon who had removed a cataract from which the witness was
suffering at the material time and which would have prevented him from seeing what he
thought he saw.188

4.4.2.5  General Reputation for Lack of Veracity

Finally, there is a controversial and little-used exception enabling evidence of general
reputation for lack of veracity to be admitted as an exception to the collateral-finality rule.
Thus circumstances may arise where a party which feels that it has failed to discredit a
witness sufficiently in cross-examination will seek to call such evidence. There are strict
rules concerning the questions which may be asked of a witness who is called to testify to
a previous witness’s general reputation for lack of veracity:
The legal position may be thus summarised:
1. A witness may be asked whether he has knowledge of the impugned witness’s gen-
eral reputation for veracity and whether (from such knowledge) he would believe the
impugned witness’s sworn testimony.
2. The witness called to impeach the credibility of a previous witness may also express
his individual opinion (based upon his personal knowledge) as to whether the latter
is to be believed on his oath and is not confined to giving evidence merely of general
reputation.
3. But whether his opinion as to the impugned witness’s credibility be based simply upon
the latter’s general reputation for veracity or upon his personal knowledge, the witness
cannot be permitted to indicate during his examination-in-chief the particular facts,
circumstances or incidents which formed the basis of his opinion, although he may be
cross-examined as to them.
This method of attacking a witness’s veracity, though ancient, is used with exceeding
rarity.189
That a party seeking to discredit a witness should be permitted, after cross-examining
that witness, to call evidence of general reputation for lack of veracity has not escaped
criticism. It has been stated in the House of Lords:
From olden times it has been the practice to allow evidence of bad reputation to discredit
a witness’s testimony. It is perhaps not very logical and not very useful to allow such

187  [1991] 1 WLR 207, 215 (italics added).

188  Toohey v Metropolitan Police Commissioner [1965] AC 595, 608.
189  R v Richardson [1969] 1 QB 299, 304–5 (italics in original).
Cross-E x amination 89

evidence founded on hearsay. None of your Lordships and none of the counsel before you
could remember being concerned in a case where such evidence was called. But the rule
has been sanctified through the centuries in legal examinations and textbooks and in
some rare cases, and it does not create injustice.190
After the evidence of general reputation for lack of veracity has been adduced, the other
party is entitled to rebut this by leading evidence to bolster the creditworthiness of the
witness in question.191

4.4.3  Reform
The collateral-finality rule remains problematic. For one thing, the distinction between
relevance to a fact in issue and relevance to credit, upon which the entire rule is premised,
is far from clear. The decision in R v Nagrecha, for example, is regarded by some as ques-
tionable. It has been seen, furthermore, that the precise basis of the decision in Busby (did
the cross-examination go to a fact in issue, or did an exception to the collateral-finality
rule apply, and if so which exception?) remains the subject of differing views. This is
unsurprising if it is appreciated that ‘credibility is not something separate (a separate
issue) which is somehow suspended between the witness’s statement and the fact asserted
therein’.192 Something a witness says about a fact in issue has relevance to that fact only
because of the witness’s creditworthiness. It has even been acknowledged judicially that
‘the distinction between matters going directly to the primary issue and those going to
the credit of those who give evidence on the issue is hard to operate in practice, and pos-
sibly unsound in theory’.193
A further difficulty with the current state of the law is suggested by the decision in
Edwards:  it may presently be impermissible to call rebuttal evidence in situations in
which this should be permitted. It is strongly arguable, for example, that police officers’
denials, under cross-examination, of allegations of malpractice should not be treated as
final (as Edwards suggests they should be), but that the defence should be permitted to call
rebuttal evidence.194
There are, essentially, three possible reform options.195 First, given that the distinction
between relevance to facts in issue and relevance to credit may in any event be illusory,
it may be possible to take a broad and functional approach to what constitutes relevance
to facts in issue. To treat cross-examination as going to a fact in issue would mean that
the collateral-finality rule would not be applicable in the first place. In Funderburk, the

190  Toohey v Metropolitan Police Commissioner [1965] AC 595, 605–6. See also R v Colwill [2002] EWCA

Crim 1320.
191  It is impermissible for a party to anticipate the adduction by the other party of evidence of general

reputation for lack of veracity by calling evidence to bolster creditworthiness in advance of that evidence: R
v Beard [1998] Crim LR 585.
192  A A S Zuckerman, The Principles of Criminal Evidence (1989) 95–6. See also J McEwan, ‘The Law

Commission Consultation Paper on Previous Misconduct:  (2)  Law Commission Dodges the Nettles in
Consultation Paper No 141’ [1997] Criminal Law Review 93, 99: ‘Once the notion of credibility is extended
to the credibility of a particular defence, we are dealing with the issue of guilt.’
193  R v Wright (1989) 90 Cr App R 325, 333. See also Thomas v Comr of Police [1997] 1 All ER 747,

764:  ‘when the question is whether the party is telling the truth on a central issue in the case, then his
creditworthiness is bound up with the decision on that issue itself’. Cf S Seabrooke, ‘Current Topic: The
Vanishing Trick—Blurring the Line between Credit and Issue’ [1999] Criminal Law Review 387.
194  See R Pattenden, ‘Evidence of Previous Malpractice by Police Witnesses and R v Edwards’ [1992]

Criminal Law Review 549, 557.

195  See generally M Newark, ‘Opening up the Collateral Issue Rule’ (1992) 43 Northern Ireland Legal

Quarterly 166, 176–7.
90
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Court of Appeal acknowledged that the answer to the question whether evidence is rel-
evant to a fact in issue or merely to credit may well be ‘an instinctive one based on the
prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic pro-
cess’.196 Indeed, in O’Brien v Chief Constable of South Wales Police, Lord Phillips of Worth
Matravers expressed reservations about the decision in R v Edwards:
Evidence which indicates that a police officer has fabricated admissions in a previous case
is not evidence ‘as to credit alone’, if it is alleged that the same officer has fabricated evi-
dence in a subsequent case. The position is now governed by section 100 of the [Criminal
Justice Act 2003] which renders admissible, with the leave of the court, evidence of the
bad character of a person other than the defendant if, and only if, it has substantial proba-
tive value in relation to a matter which is in issue in the proceedings and is of substantial
importance in the context of the case as a whole.197
Secondly, it may be possible to treat the list of exceptions to the collateral-finality rule as
not closed. This was an option mentioned in Funderburk: ‘It may be that the categories
of exception . . . are not closed. It is impossible to tell the circumstances in which some
problems may arise in the future.’198 The third option is to acknowledge openly that, ulti-
mately, the aim is to achieve a fair balance between the considerations of convenience and
justice in the circumstances of the particular case. Thus a flexible approach, rather than
the current approach of recognizing a firm rule subject to exceptions, should be taken.
Such an approach, which has much to commend it, has been advocated by Newark:
The advantage of a discretionary approach would be that it calls for a more open balancing
of the inconvenience and danger of opening up the collateral issue against the dangers of
not doing so. Thus contradiction on trivial details which are likely to be hotly contested,
wasting much time, requiring adjournments in fairness to the other side, confusing or
misleading the jury, could be prevented, while contradictions on matters vitally affecting
the reliability of the witness’s testimony which can be quickly and fairly resolved, can be
allowed. Of course, there will be difficult cases in between; but the argument in favour of
discretion is based on the assumption that all sensible, fair-minded judges, without being
able to formulate any general rule on the matter, can intuitively recognize those side issues
that ought to be explored and those that ought not. Greater latitude could be granted to
an accused seeking to contradict a prosecution witness than to a prosecutor seeking to
contradict a defence witness.199

5  Summary and Conclusion

This chapter has examined a number of principles governing the presentation of a case
in court. The principles governing the questioning of one’s own witness (which occurs
in examination-in-chief and re-examination) were distinguished from those govern-
ing the questioning of another party’s witness (which occurs in cross-examination). We

196  [1990] 1 WLR 587, 598. See also R v Tobin [2003] EWCA Crim 190 at [32].
197  [2005] UKHL 26, [2005] 2 AC 534 at [41]. 198  [1990] 1 WLR 587, 599.
199  M Newark, ‘Opening Up the Collateral Issue Rule’ (1992) 43 Northern Ireland Legal Quarterly 166,

176. See also J Hunter, ‘Battling a Good Story: Cross-Examining the Failure of the Law of Evidence’, 287,
in P Roberts and M Redmayne (eds), Innovations in Evidence and Proof: Integrating Theory, Research and
Teaching (2007), arguing for the need ‘to replace the largely unworkable collateral evidence/finality rule
with a well-informed case management principle, leaving judges to make balanced admissibility rulings
according to the contextualised facts of individual cases’.
Further Re ading 91

have seen that, in criminal proceedings, provisions in the Criminal Justice Act 2003 now
deal with two particular matters that may arise in the course of questioning one’s own
witness—the extent to which refreshing memory is permitted, and the extent to which a
previous consistent statement is admissible in evidence. We also considered a variety of
other issues, including the judicial approach to ‘no case to answer’ submissions in crimi-
nal trials, and the extent to which the claimant or prosecution may adduce further evi-
dence after closing its case. The rule in Browne v Dunn requires a cross-examiner’s version
of the facts to be put to a witness in order for that version to be relied on, and the operation
of the collateral-finality rule, which—subject to exceptions—treats a witness’s answers
under cross-examination to credit as ‘final’, remains controversial.

Further Reading
Attorney General’s Office, Attorney General’s Guidelines on Disclosure: For Investigators,
Prosecutors and Defence Practitioners (2013)
Judiciary of England and Wales, Judicial Protocol on the Disclosure of Unused Material in
Criminal Cases (2013)
A Keane and R Fortson, ‘Leading Questions—A Critical Analysis’ [2011] Criminal Law
Review 280
M Newark, ‘Opening Up the Collateral Issue Rule’ (1992) 43 Northern Ireland Legal
Quarterly 166
R Pattenden, ‘The Submission of No Case—Some Recent Developments’ [1982] Criminal
Law Review 558
4
Confessions

This chapter explores the extent to which evidence of a confession by an accused per-
son may be utilized by the prosecution at his or her trial.1 A study published in 2000
found that 55 per cent of suspects made confessions during police interviews. 2 To
adduce confession evidence is to adduce hearsay evidence, as the accused’s out-of-
court statement is being tendered in court as evidence of the matters stated. 3 An
important exception to the hearsay rule, however, allows an accused’s confession to be
adduced in evidence by the prosecution in certain circumstances. An examination of
these circumstances will be the focus of this chapter.

1  Confessions and Miscarriages of Justice

The traditional justification for the confession exception to the hearsay rule is that
only a guilty person would make a statement against his or her own interest: ‘admis-
sions made by [a defendant] are admissible against him for the obvious reason that
he would be unlikely to have made them unless they were true’.4 Thus, a confession
may be presumed to be reliable. One need, however, only state this traditional justifica-
tion for the admissibility of confession evidence to see the flaws inherent in it. Cases
such as those of the Guildford Four, Birmingham Six, Judith Ward, 5 and Bridgewater
Three brought dramatically to public attention the sorts of miscarriages of justice
which can occur as a result of the admission of confession evidence. In broad terms,
three possible problems with confession evidence may be identified. First, the confes-
sion may have been totally fabricated by the police; it may never have been made at all
by the person to whom it is attributed. This practice of, in effect, putting confessions
into the mouths of accused persons who never made them is sometimes termed ‘ver-
balling’. Secondly, while the suspect may indeed have confessed, he or she may have
made a false confession. There are different ways of categorizing false confessions, but

1  See generally S Easton, Silence and Confessions: The Suspect as the Source of Evidence (2014). Statements

against interest made out of court by parties to the proceedings are known in civil cases as ‘admissions’, and
are discussed in Chapter 14.
2  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 34.

3  Hearsay evidence is discussed in detail in Chapter 11.
4  R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 at [82].
5  On such cases, see generally I Dennis, ‘Miscarriages of Justice and the Law of Confessions: Evidentiary

Issues and Solutions’ [1993] Public Law 291; G H Gudjonsson, ‘Unreliable Confessions and Miscarriages of
Justice in Britain’ (2002) 4 International Journal of Police Science and Management 332.
Confessions and Misc arriages of Jus tice 93

the most common categorization distinguishes between three different types of false
confession:6
1. Voluntary False Confessions. These ‘are given without any external pressure from
the police’. Such a confession may be made because the confessor (1)  has ‘a “morbid
desire for notoriety”, that is, a pathological need to become infamous and to enhance
self-esteem, even if it means the prospect of imprisonment’; or (2) has feelings of guilt
about a real or imagined previous transgression; or (3) is ‘unable to distinguish fact from
fantasy’; or (4) wishes to assist or protect the real culprit (a phenomenon that is more
common in the case of minor offences than in the case of serious offences); or (5) sees no
possible way of disputing guilt, and confesses in order to obtain a reduced punishment;
or (6) wishes ‘to pre-empt further investigation of a more serious offence’; or (7) wishes ‘to
hide other, non-criminal facts’.7
2. Coerced-Compliant False Confessions. Such confessions occur when ‘suspects
believe that the benefits of confessing outweigh the costs. People confess in order to
escape from the police interview, which they consider to be stressful and intolerable
(Paddy Armstrong, one of the Guildford Four, said he confessed for this reason); they
confess because of police tricks in which they have been promised a reward to confess; or
they confess because of a combination of the two.’8
3. Coerced-Internalized False Confessions. These ‘occur when people come
to believe, during police interviewing, that they have committed the crime they
are accused of even though they have no actual memory of having committed the
crime . . . Carole Richardson (one of the Guildford Four) reported such an experience.’9
It has been noted:
Internalised false confessions do not imply that suspects become convinced that they
have committed a crime . . . internalised false confessions occur because suspects have
formed the opinion that it is more likely than not that they are guilty. They typically
have no memory of having committed the crime, but the tactics used by the police aim-
ing to diminish suspects’ confidence in their memory make them less certain of their
innocence and make them wonder whether it might be possible that they did commit
the crime.10

6
  See G H Gudjonsson, The Psychology of Interrogations and Confessions:  A  Handbook (2003) Ch 8,
G H Gudjonsson, The Psychology of Interrogations, Confessions and Testimony (1992) 226–8, and A Memon,
A Vrij, and R Bull, Psychology and Law: Truthfulness, Accuracy and Credibility (2nd ed 2003) 77–81, on
which I have relied in the succeeding paragraphs. See also L F Lowenstein, ‘Aspects of Confessions: What
the Legal Profession Should Know’ (1999) 163 Justice of the Peace 586; L F Lowenstein, ‘Confessions
in Criminal Cases:  Are They Always Safe and Relevant?’ (2006) 170 Justice of the Peace 624; C Sherrin,
‘False Confessions and Admissions in Canadian Law’ (2005) 30 Queen’s Law Journal 601, 622 ff; G Smith,
‘The Psychology of False Confessions’ [2009] 1 Criminal Bar Quarterly 8; L J Taylor and S E Henderson,
‘Confessions: Consensus In Idem?’ [2002] Scots Law Times 325; G T Trotter, ‘False Confessions and Wrongful
Convictions’ (2003–4) 35 Ottawa Law Review 179, 182–7; J McEwan, The Verdict of the Court:  Passing
Judgment in Law and Psychology (2003) 174–5.
7  A Memon, A Vrij, and R Bull, Psychology and Law:  Truthfulness, Accuracy and Credibility (2nd ed

2003) 78.
8  A Memon, A Vrij, and R Bull, Psychology and Law:  Truthfulness, Accuracy and Credibility (2nd ed

2003) 79.
9  A Memon, A Vrij, and R Bull, Psychology and Law:  Truthfulness, Accuracy and Credibility (2nd ed

2003) 79.
10  A  Memon, A  Vrij, and R Bull, Psychology and Law:  Truthfulness, Accuracy and Credibility

(2nd ed 2003) 80–1 (italics in original). See also J Pearse and G H Gudjonsson, ‘Measuring Inf luential
Police Interviewing Tactics:  A  Factor Analytic Approach’ (1999) 4 Legal and Criminological
Psychology 221.
94
Confessions

The third possible problem with confession evidence is that, even if the confession in
question was in fact made, and even if it is true, there may be considerations of extrinsic
policy which dictate that it is still inappropriate to use the confession in evidence, because
of the unacceptable methods by which it was extracted.
As we shall see, exclusion remains the primary mechanism utilized by English law to
deal with the problem of confession evidence. Despite many exhortations that confession
evidence should be inadmissible unless corroborated, or at least supported, by other evi-
dence, a requirement for supporting evidence has not been introduced into English law
and it is now extremely unlikely that it will be.
An argument that confession evidence should be excluded totally from the jury’s con-
sideration raises a question of law to be decided by the trial judge. An argument that
confession evidence was fabricated, however, is a question of fact, and is therefore to be
decided, in a trial with a jury, by the jury.11 Both questions may, of course, arise in the
same case. Thus,
where the prosecution alleges that the defendant made an . . . admission, and the case
is raised on behalf of the defendant that he did not make the . . . admission and that he
was ill-treated by the police before or at the time of the alleged admission, two issues
are raised which are not mutually exclusive. The first issue, which is for the judge
to decide, is whether, on the assumption that the alleged admission was made, it is
inadmissible . . . The second issue, which is for the jury to decide if the judge rules that
the alleged admission is admissible in evidence, is whether the admission was in fact
made.12
The rationale for the respective roles of judge and jury in this context has been explained
in detail by the Court of Appeal:
The method adopted by domestic law of providing different functions for the judge
and the jury in relation to disputed confessions is in our judgment one with signifi-
cant advantages for ensuring that justice is done. The obvious one is that it removes
from the jury what may be a difficult task of disregarding a confession obtained by
oppression where it may be patently obvious from its content that it is true and so
avoids the risk they might not fully and properly put it out of their minds. The system
provides that unless the prosecution can satisfy the judge to the high criminal stand-
ard of proof that it was not obtained by oppression, the jury never hear a word of the
confession.
There are other practical advantages to the separate functions. Evidence highly rel-
evant to the issue of voluntariness may be particularly prejudicial to an accused person.
Because the jury do not hear the evidence on the voir dire, matters of importance to the
issue being examined may the more readily be expressed because there is no fear that the
jury will be affected by them. By way of example, the previous experience of an accused in
police stations may have a considerable bearing upon how he would react to a given situ-
ation in custody since someone with no such experience might react differently. Issues
of this kind, potentially of great relevance to the admissibility of the evidence, can be
explored before the judge alone.
The division of functions . . . also means that the decision . . . is given in a reasoned judg-
ment, which may therefore be subjected to scrutiny by the appellate court.13

11  See Ajodha v The State [1982] AC 204; R v Flemming (1987) 86 Cr App R 32.
12  Thongjai v R [1997] 3 WLR 667, 673.
13  R v Mushtaq [2002] EWCA Crim 1943 at [31]–[33]. The decision of the Court of Appeal was affirmed

by the House of Lords: [2005] UKHL 25, [2005] 1 WLR 1513.

‘Confession ’ 95

2  ‘Confession’
Section 76(1) of the Police and Criminal Evidence Act 1984 provides that ‘a confession
made by an accused person may be given in evidence against him in so far as it is relevant
to any matter in issue in the proceedings and is not excluded by the court in pursuance
of this section’. A confession is defined in section 82(1) as including ‘any statement wholly
or partly adverse to the person who made it, whether made to a person in authority or
not and whether made in words or otherwise’. It does not, therefore, have to have been
made orally or in writing, and may have been made by conduct. Thus a video record-
ing of a re-enactment by the accused of the crime, or a demonstration by the accused of
how the crime was committed, clearly constitutes confession evidence. The Privy Council
observed in Li Shu-Ling v R, however, that, in order that the accused not be prejudiced by
‘lack of acting skill’,
the video recording should be shown to the accused as soon as practicable after it has
been completed and he should be given the opportunity to make and have recorded any
comments he wishes about the film. If the accused says the film does not show what he
meant to demonstrate there will then be a contemporary record of his criticism which the
judge and jury can take into account when assessing the value of the film as evidence of
his confession.14
In R v Hasan15 the following question arose for consideration by the House of
Lords: ‘Whether a “confession” in section 76 of the Police and Criminal Evidence Act
1984 includes a statement intended by the maker to be exculpatory or neutral and
which appears to be so on its face, but which becomes damaging to him at the trial
because, for example, its contents can then be shown to be evasive or false or incon-
sistent with the maker’s evidence on oath.’ The House answered this question in the
negative:
Properly construed section 76(1), read with section 82(1), requires the court to interpret a
statement in the light of the circumstances when it was made. A purely exculpatory state-
ment (eg ‘I was not there’) is not within the scope of section 76(1). It is not a confession
within the meaning of section 76. The safeguards of section 76 are not applicable. But the
safeguards of section 78 are available.16
Such a literal interpretation of the provisions was not considered to violate Article 6 of
the European Convention on Human Rights:
There is . . . nothing in the text of [A]‌r ticle 6 or in the corpus of European jurispru-
dence which supports the view that sections 76(1) and 82(1) create any incompatibil-
ity with [A]rticle 6. Given the unrestricted capability of section 78 to avoid injustice
by excluding any evidence obtained by unfairness (including wholly exculpatory or
neutral statements obtained by oppression), sections 76(1) and 82(1) are . . . compatible
with [A]rticle 6.17

14  [1989] 1 AC 270, 279–80.

15  [2005] UKHL 22, [2005] 2 WLR 709. See generally G Durston, ‘Confession Evidence and the Meaning
of “Adverse”’ (2005) 155 New Law Journal 1292.
16  [2005] UKHL 22, [2005] 2 WLR 709 at [58]. 17  [2005] UKHL 22, [2005] 2 WLR 709 at [62].
96
Confessions

3  Mandatory Exclusion
Section 76(2) of the Police and Criminal Evidence Act 1984 provides that there are two
grounds18 on which a confession sought to be used at trial by the prosecution must be
excluded from evidence:
If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession was or may
have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made by
him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so
far as the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid.
If no ‘representation’ is made by the defence that the confession was obtained in a
manner proscribed by subsection (2), the court may of its own motion require the pros-
ecution to prove that it was not obtained in such a manner.19 The Court of Appeal has
held that ‘a statement by responsible counsel, upon the basis of documents or a proof
of evidence in his possession at the time of speaking, that this confession was or may
have been obtained by oppression or in consequence of anything said or done which,
in the circumstances at the time, was likely to render it unreliable, is a “representation”
for the purposes of s 76(2)’.20
The two grounds for the mandatory exclusion of confession evidence will now be
considered in turn.

3.1  Oppression
A confession must be excluded from evidence if it was obtained by oppression of the per-
son making it. The word ‘oppression’ is defined in section 76(8) of the Police and Criminal
Evidence Act 1984 as including ‘torture, inhuman or degrading treatment, and the use or
threat of violence (whether or not amounting to torture)’. The decisions of the Court of
Appeal in which the meaning of this word has been considered suggest that it connotes
fairly harsh treatment of the confessor, and therefore that it is only in rare cases that the
prosecution would be unable to prove that a confession was not obtained by oppression.
In the leading case of R v Fulling, the Court of Appeal held that
‘oppression’ in section 76(2)(a) should be given its ordinary dictionary meaning.
The Oxford English Dictionary as its third definition of the word runs as fol-
lows:  ‘Exercise of authority or power in a burdensome, harsh, or wrongful manner;
unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable
or unjust burdens.’ One of the quotations given under that paragraph runs as follows:

18  See generally A V Bicak, ‘Police and Criminal Evidence Act 1984, S 76(2):  Re-Emergence of the

Involuntariness Test’ (2001) 65 Journal of Criminal Law 85.

19  Police and Criminal Evidence Act 1984, s 76(3).
20  R v Dhorajiwala [2010] EWCA Crim 1237, [2010] 2 Cr App R 21, (2010) 174 JP 401 at [23].
Mandatory E xclusion 97

‘There is not a word in our language which expresses more detestable wickedness
than oppression.’21
The Court suggested, in addition, that oppression will almost certainly entail bad faith
on the part of the interrogator. Fulling’s allegation in this case was that the police had
behaved oppressively by informing her that her lover had been having an affair with
another woman, and that this woman was in the next cell. Fulling contended that she
confessed because these revelations distressed her so much that she could not bear to
remain in the cells any longer. The Court of Appeal confirmed that the actions of the
police in giving Fulling the information about the woman in the next cell did not consti-
tute oppression.22
In a similar vein, the Court of Appeal found no oppression in R v Emmerson where one
of the interviewing officers, giving the impression of impatience and irritation, ‘raised
his voice and used some bad language’.23 By contrast, in R v Paris, the case of the ‘Cardiff
Three’, one of the co-accused, Miller, was
bullied and hectored. The officers, particularly Detective Constable Greenwood, were
not questioning him so much as shouting at him what they wanted him to say. Short
of physical violence, it is hard to conceive of a more hostile and intimidating approach
by officers to a suspect. It is impossible to convey on the printed page the pace, force
and menace of the officer’s delivery . . . 24
The Court of Appeal held that this conduct clearly amounted to oppression.
At issue in Mohd Ali bin Burut v Public Prosecutor was the ‘special procedure’ applica-
ble in cases of suspected firearms offences in Brunei, involving suspects being manacled
and hooded during interrogation. The Privy Council considered that ‘for the police to
interview an arrested person while he is manacled and hooded is plainly oppressive con-
duct’, and that the statements which were made could be said to have been obtained by
oppression even though they had not actually been obtained during the application of
the ‘special procedure’: ‘the relatively short gaps between the application of the “special
procedure” and the taking of the statements, inferentially suggested that the statements
were, or may have been, obtained by oppression’.25
Further assistance on the meaning of ‘oppression’ in section 76(2)(a) may be pro-
vided by the jurisprudence on Article 3 of the European Convention on Human Rights,
which prohibits both torture and ‘inhuman or degrading treatment’.26 As seen in the
first paragraph of Section 3.1, section 76(8) makes it clear that either torture or ‘inhu-
man or degrading treatment’ will constitute oppression. What constitutes inhuman or
degrading treatment, and how such treatment is to be distinguished from torture, has
been explained by the European Court of Human Rights in a number of cases, including
the judgment of the Grand Chamber of the Court in El-Masri v Former Yugoslav Republic
of Macedonia:
The Court reiterates that [A]‌r t 3 of the Convention enshrines one of the most funda-
mental values of democratic societies. Unlike most of the substantive clauses of the

21  [1987] QB 426, 432. 22  [1987] QB 426, 432–3.

23  (1990) 92 Cr App R 284, 287. See also R v Foster [2003] EWCA Crim 178.
24  (1992) 97 Cr App R 99, 103. 25  [1995] 2 AC 579, 593.
26  See generally S Palmer, ‘A Wrong Turning: Article 3 ECHR and Proportionality’ [2006] Cambridge

Law Journal 438; J Vorhaus, ‘On Degradation. Part One: Article 3 of the European Convention on Human
Rights’ (2002) 31 Common Law World Review 374; J Vorhaus, ‘On Degradation. Part Two:  Degrading
Treatment and Punishment’ (2003) 32 Common Law World Review 65; J Waldron, ‘Inhuman and Degrading
Treatment: The Words Themselves’ (2010) 23 Canadian Journal of Law and Jurisprudence 269.
98
Confessions

Convention, [A]rt 3 makes no provision for exceptions and no derogation from it is per-
missible under [A]rt 15(2), even in the event of a public emergency threatening the life of
the nation. The Court has confirmed that even in the most difficult circumstances, such
as the fight against terrorism and organised crime, the Convention prohibits in absolute
terms torture and inhuman or degrading treatment or punishment, irrespective of the
conduct of the person concerned.
In order for ill-treatment to fall within the scope of [A]‌r t 3 it must attain a minimum
level of severity. The assessment of this minimum depends on all the circumstances
of the case, such as the duration of the treatment, its physical or mental effects and, in
some cases, the sex, age and state of health of the victim. Further factors include the
purpose for which the treatment was inflicted together with the intention or motivation
behind it.
In order to determine whether any particular form of ill-treatment should be clas-
sified as torture, the Court must have regard to the distinction drawn in [A]‌r t 3
between this notion and that of inhuman or degrading treatment. This distinction
would appear to have been embodied in the Convention to allow the special stigma
of ‘torture’ to attach only to deliberate inhuman treatment causing very serious and
cruel suffering. In addition to the severity of the treatment, there is a purposive
element . . . 27

3.2  Potential Unreliability

In essence, section 76(2)(b) is directed at the issue of potentially unreliable confession
evidence. It requires the court to determine whether
• the confession was obtained in consequence of something said or done which,
• taking into account all the circumstances prevailing at the time,
• was likely to cause any confession which might be made to be unreliable.
Bad faith on the part of the interrogator is not a prerequisite to the successful invocation
of section 76(2)(b).28 However, the condition that the confession be one made in conse-
quence of something ‘said or done’ has been interpreted narrowly. In R v Goldenberg, the
defendant, a heroin addict, had himself requested the interview with the police during
which the relevant confessions were made, apparently because he was suffering from
withdrawal symptoms and wished to obtain bail in order to feed his addiction. It was
contended that, given these circumstances, the confessions were likely to have been
unreliable. The Court of Appeal held, however, that, as there was no suggestion that
Goldenberg had confessed in consequence of anything said or done by the interviewing
officers, section 76(2)(b) could not be invoked. The words ‘anything said or done’ ‘do
not extend so as to include anything said or done by the person making the confession’,
but, rather, are ‘limited to something external to the person making the confession’.29
It would appear that this narrow interpretation30 continues to be taken in the Court

27  (2012) 57 EHRR 25 at [195]–[197]. See also Ireland v UK (1978) 2 EHRR 25; Selmouni v France (1999)

29 EHRR 403; Öcalan v Turkey (2005) 41 EHRR 45; Jalloh v Germany (2006) 44 EHRR 32; Ramirez Sanchez
v France (2006) 45 EHRR 49; Kafkaris v Cyprus (2008) 49 EHRR 35; N v UK (2008) 47 EHRR 39; MSS v
Belgium and Greece (2011) 53 EHRR 2; Saadi v Italy (2008) 49 EHRR 30.
28  R v Fulling [1987] QB 426, 432. 29  (1988) 88 Cr App R 285, 290.
30  It is arguable, however, that the confession evidence should have been excluded under s 78(1) of the

Police and Criminal Evidence Act 1984, discussed in Section 4.  The Court of Appeal remarked in R v
Goldenberg (1988) 88 Cr App R 285, 289: ‘It does not appear . . . that in the present case any submission was
made to the judge at the trial to the effect that the evidence should be excluded in accordance with section 78.
Mandatory E xclusion 99

of Appeal; in R v Wahab the Court commented: ‘In the present case, when the appel-
lant instructed his solicitor to see whether some convenient arrangement could be pro-
cured with the police, he was uninfluenced by anything said and done by anyone else.
Everything thereafter originated from the appellant himself.’31
Breach of a provision of the Police and Criminal Evidence Act 1984, or one of the asso-
ciated Codes of Practice, may be tantamount to something ‘said or done’ under section
76(2)(b). Examples include the unlawful denial of access to a solicitor under Code C and
breach of the Code provisions governing the recording of interviews.32
The confession must have been obtained in consequence of whatever is alleged to have
been ‘said or done’. In R v Law-Thompson33 the Court of Appeal thought that section 76(2)(b)
could not have been invoked because there was no suggestion that the confessions had
been obtained in consequence of the absence of an appropriate adult during interview. 34
The Court of Appeal was content to assume in R v Crampton that ‘the mere holding of
an interview at a time when the appellant is withdrawing from the symptoms of heroin
addiction is something which is done within the meaning of section 76(2)’, but doubted
the correctness of this: ‘The reason why we say it is doubtful is because the words of the
subsection seem to postulate some words spoken by the police or acts done by them which
were likely to induce unreliable confessions.’35 It is submitted that the broader approach
on which the Court in Crampton was prepared to act is preferable: there is no logical
reason why the mere holding of an interview should not in appropriate circumstances
constitute the words or conduct likely to induce unreliable confessions. Necessarily to
have to point to more specific words or conduct would be contrary to a literal interpreta-
tion of the provision.36
In determining whether what was said or done was likely to render any resulting con-
fession unreliable, the court must consider the circumstances actually existing at the
time. It is relevant to have regard, for example, to the suspect’s physical condition and
emotional state at the time;37 the suspect’s mental condition (including his or her mental
age,38 his or her suggestibility and vulnerability,39 and the presence of any personality dis-
order40); the suspect’s fitness to be interviewed (a suspect under the influence of drugs41 or
suffering from withdrawal symptoms may obviously be unfit, although ‘the mere fact that

In these circumstances it does not appear to us that it would be right for this Court to give effect to a sub-
mission which depends on the failure of a judge to exclude evidence by a discretion which at the trial he
was not asked to exercise.’
31  [2002] EWCA Crim 1570, [2003] 1 Cr App R 15 at [41].
32  R v McGovern (1990) 92 Cr App R 228. 33  [1997] Crim LR 674.
34  See also R v Samuel [2005] EWCA Crim 704 at [45]: ‘In our view there is no doubt that the appel-

lant was doing what he had decided was necessary to secure his release from detention and to remain in
Nigeria free from the threat of extradition to the UK. As part of his reasoning he “factored in” informa-
tion from his fellow inmates and acted in such a way as would best achieve his goals. Thus, whilst he
may have amplified his account on the 22nd “in the light of ” that information, it cannot be said that
it was “in consequence” of it. It remained a voluntary statement by a person who was in control of his
own destiny and who did not seek outside help in the form of a solicitor. Accordingly there is no basis
for contending that the judge would have concluded other than that the prosecution had satisfied him
to the criminal standard that his statement of the 22nd was not made in consequence of anything said
which was likely to render any confession contained in it unreliable. On that basis there was no error
of law in his ruling.’
35  (1990) 92 Cr App R 369, 372. 36  See also R v Walker [1998] Crim LR 211.
37  R v McGovern (1990) 92 Cr App R 228.
38  R v McGovern (1990) 92 Cr App R 228; R v Sylvester [2002] EWCA Crim 1327.
39  R v Sylvester [2002] EWCA Crim 1327. 40  R v Walker [1998] Crim LR 211.
41  R v Walker [1998] Crim LR 211.
100
Confessions

someone is withdrawing, and may have a motive for making a confession, does not mean
the confession is necessarily unreliable’42); and the absence of an appropriate adult.43
An unreliable confession is one which ‘cannot be relied upon as being the truth’. The
concern of section 76(2)(b), therefore, is with ‘the nature and quality of the words spo-
ken or the things done by the police which are likely to, in the circumstances existing at
the time, render the confession unreliable in the sense that it is not true’.44 The fact that
the actual truth or otherwise of the confession is irrelevant is made clear by the phrase
‘notwithstanding that it may be true’ in section 76(2), and has been affirmed by the Court
of Appeal.45 Clearly, it is considered that for the judge to be required to assess the actual
reliability of the confession would be to usurp the function of the jury.46

3.3  Direction to Jury where Confession Passes Section 76(2) Tests

In R v Mushtaq47 the following question was certified for consideration by the House
of Lords:
Whether, in view of Article 6 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, a Judge, who has ruled pursuant to Section 76(2) of the Police
and Criminal Evidence Act 1984 that evidence of the alleged confession has not been
obtained by oppression, nor has it been obtained in consequence of anything said or done
which is likely to render unreliable any confession, is required to direct the jury, if they
conclude that the alleged confession may have been so obtained, they must disregard it.
This question was answered in the affirmative. In the words of Lord Rodger of Earlsferry:
‘the logic of section 76(2) of PACE really requires that the jury should be directed that,
if they consider that the confession was, or may have been, obtained by oppression or in
consequence of anything said or done which was likely to render it unreliable, they should
disregard it’.48 In Charles v The Queen the Privy Council noted that Mushtaq ‘applies
where a defendant accepts that he made a statement attributed to him’; ‘it does not apply
where the complaint is that the statement was a fabrication and did not represent what the
defendant told the interviewing officers’.49

4  Discretionary Exclusion
Even if a confession cannot be excluded from evidence under section 76, it may still
be possible for it to be excluded in the exercise of discretion, on the ground that it was
improperly obtained, either under the general common law duty to ensure a fair trial50 or
pursuant to section 78(1) of the Police and Criminal Evidence Act 1984. Indeed, ‘it is evi-
dent that many cases which could have fallen to be decided under section 76 are instead
being considered by the courts under section 78(1)’, and it is for this reason ‘that the
jurisprudence on section 76 remains surprisingly underdeveloped given the difficulties

42  R v Crampton (1990) 92 Cr App R 369. 43  R v Sylvester [2002] EWCA Crim 1327.

44  R v Crampton (1990) 92 Cr App R 369, 372.
45  R v McGovern (1990) 92 Cr App R 228; R v Crampton (1990) 92 Cr App R 369. See also R v J [2003]

EWCA Crim 3309 at [44]: ‘The words “notwithstanding that it may be true” are important and have been
repeatedly said by this court to show that what the court is concerned with on admissibility is the reliability
of the confession, given the circumstances in which it was obtained, and not its veracity’.
46  See P Mirfield, Silence, Confessions and Improperly Obtained Evidence (1997) 99.
47  [2005] UKHL 25, [2005] 1 WLR 1513. 48  [2005] UKHL 25, [2005] 1 WLR 1513 at [47].
49  [2007] UKPC 47 at [14]. 50  R v Sang [1980] AC 402.
Discre tionary E xclusion 101

of interpreting it’.51 Section 78(1), which has been judicially described as a provision
which ‘is by now known almost by heart by most people who have anything to do with
the law’,52 and which is certainly by far the most cited provision of the Act,53 states:
In any proceedings the court may refuse to allow evidence on which the prosecution pro-
poses to rely to be given if it appears to the court that, having regard to all the circum-
stances, including the circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it.54
The common law discretion is a narrow one, and the House of Lords has expressly
acknowledged that ‘the power conferred by s 78 to exclude evidence in the interests of
a fair trial is at least as wide as that conferred by the common law’.55 To all intents and
purposes, therefore, the common law may be regarded as having been rendered otiose in
this context by section 78(1): at least the same range of improperly obtained evidence may
be excluded under section 78(1) as can be excluded at common law. There is one situation,
however, in which it would be necessary, in order to secure the exclusion of confession
evidence, to have recourse to the common law discretion. This is where section 76 and
section 78(1) are inapplicable because the confession has already been given in evidence.56
The Court of Appeal suggested in R v Sat-Bhambra that the phrases ‘proposes to give in
evidence’ and ‘shall not allow the confession to be given’ in section 76, and the phrase
‘proposes to rely’ in section 78(1), do not connote evidence which has already been heard
by the jury.57 Thus, where the trial judge decides to exclude from the jury’s consideration
confession evidence which has already been heard by the jury, the common law discre-
tion would need to be invoked to achieve such exclusion, with the jury being directed to
disregard the evidence.
The appellate courts have exhibited a marked reluctance to provide guidelines for the
exercise of the section 78(1) discretion. The following comment is typical: ‘It is undesir-
able to attempt any general guidance as to the way in which a judge’s discretion under sec-
tion 78 . . . should be exercised. Circumstances vary infinitely.’58 Furthermore, ‘the Court
of Appeal does not set aside the exercise of the trial judge’s discretion under section 78
unless it concludes that the decision to admit the confession was unreasonable in the
Wednesbury sense’.59 An examination of the cases reveals, however, that a number of
general principles have indeed emerged:
• A ‘significant and substantial’ breach of the rules will weigh heavily in favour of
exclusion, but will not lead automatically to exclusion. Exclusion is unlikely to be

51  K Grevling, ‘Fairness and the Exclusion of Evidence under Section 78(1) of the Police and Criminal

Evidence Act’ (1997) 113 Law Quarterly Review 667, 667–8.

52  Hudson v DPP [1992] RTR 27, 34 per Hodgson J.
53  K Grevling, ‘Fairness and the Exclusion of Evidence under Section 78(1) of the Police and Criminal

Evidence Act’ (1997) 113 Law Quarterly Review 667, 667.

54  Italics added. 55  R v Khan (Sultan) [1996] 3 All ER 289, 298.
56  See generally D J Birch, ‘The Pace Hots up: Confessions and Confusions under the 1984 Act’ [1989]

Criminal Law Review 95, 99.

57  (1988) 88 Cr App R 55, 62.
58  R v Samuel [1988] QB 615, 630. See also R v Jelen (1989) 90 Cr App R 456, 465: ‘The circumstances

of each case are almost always different, and judges may well take different views in the proper exercise
of their discretion even where the circumstances are similar. This is not an apt field for hard case law and
well-founded distinctions between cases.’
59  Thompson v R [1998] 2 WLR 927, 949. See also R v O’Leary (1988) 87 Cr App R 387, 391; R v Christou

[1992] QB 979, 989.
102
Confessions

ordered if the defendant is not considered to have been actually disadvantaged by the
breach.60 The court may consider, for example, that the confession was likely to have
been made even if the breach had not occurred.
• A breach may, by its very nature, be significant and substantial; in other words, it will
be significant and substantial even if the police acted in good faith. Bad faith can,
however, convert a breach which is not otherwise significant and substantial into
one which is.61
• Section 78(1) is not to be used directly to discipline the police.62
A closer look will now be taken at the application of these principles.

4.1  Breaches of the Police and Criminal Evidence Act 1984 and/or
the Codes of Practice
Defence attempts to obtain exclusion of confession evidence under section 78(1) are often
premised on the argument that the confession was obtained in breach of the Police and
Criminal Evidence Act 1984 and/or its associated Codes of Practice.

4.1.1  Denial of Access to Legal Advice

The question has arisen whether a breach of section 58, and/or the provisions of Code
C which relate to access to legal advice, should lead to the exclusion of confession evi-
dence under section 78(1). Section 58 of the Police and Criminal Evidence Act 1984 makes
provision for access to legal advice for persons arrested and held in custody. Subsection
(1) provides: ‘A person arrested and held in custody in a police station or other premises
shall be entitled, if he so requests, to consult a solicitor privately at any time.’ Subsection
(4) states: ‘If a person makes such a request, he must be permitted to consult a solicitor as
soon as is practicable except to the extent that delay is permitted by this section.’ Section
58 is supported by detailed provisions in Code C of the Codes of Practice issued pursu-
ant to section 66.63 Significantly, paragraph 6.6 of Code C provides that a detainee who
wants legal advice may not be interviewed until he or she has received it, unless (in very
general terms)
• delay in allowing access to legal advice is permitted in the circumstances; or
• an officer of at least superintendent rank authorizes the interview; or
• a solicitor acceptable to the detainee cannot be found or is unavailable.
The Court of Appeal has described the right of access to legal advice as ‘one of the
most important and fundamental rights of a citizen’.64 It has also observed that ‘the
main object of section 58 of the Act and indeed of the Codes of Practice is to achieve

60  R v Samuel [1988] QB 615; R v Alladice (1988) 87 Cr App R 380; R v Parris (1988) 89 Cr App R 68; R v

Keenan [1990] 2 QB 54; R v Walsh (1989) 91 Cr App R 161; R v Canale [1990] 2 All ER 187; R v Dunn (1990)
91 Cr App R 237; R v Dunford (1990) 91 Cr App R 150. See also Mohammed v The State [1999] 2 WLR 552 (see
generally D O’Brien and V Carter, ‘“Don’t Look Back”: The Exclusion of Evidence and the Constitutional
Rights of the Accused. A Caribbean Commonwealth Perspective’ (2000) 4 International Journal of Evidence
and Proof 45).
61  R v Walsh (1989) 91 Cr App R 161.
62  R v Mason [1988] 1 WLR 139; R v Delaney (1988) 88 Cr App R 338.
63  See generally M Zander, ‘If the PACE Codes Are Not Law, Why Do They Have to Be Followed?’ (2012)

176 Criminal Law and Justice Weekly 713.

64  R v Samuel [1988] QB 615, 630.
Discre tionary E xclusion 103

fairness—to an accused or suspected person so as, among other things, to preserve and
protect his legal rights; but also fairness for the Crown and its officers so that again,
among other things, there might be reduced the incidence or effectiveness of unfounded
allegations of malpractice’.65 Given that the law now permits adverse inferences to be
drawn, in appropriate circumstances, from silence in the face of police questioning,66
access to legal advice would seem to assume particular importance in contemporary
criminal procedure.
The courts have taken the view that a clear breach of section 58 and/or the associated
Code provisions would be likely of itself to be considered significant and substantial, and
that, prima facie, the admission of confession evidence obtained as a result of the breach
would adversely affect the fairness of the proceedings. What section 78(1) requires, how-
ever, is that the trial judge determine whether admission would adversely affect fairness
to such an extent that the evidence ought not to be admitted.67 It is here that the precise
implications of the particular breach must be considered. Only if the breach could have
‘made a difference’ in the case would exclusion appear to be justified. In R v Samuel68 the
Court of Appeal considered that the refusal of access to a solicitor could have resulted in
a confession which would not have been made had the breach not occurred. The appel-
lant’s solicitor asserted that, as his client had already strenuously denied his involvement
in the crime in four previous interviews, and had already been charged with two seri-
ous offences, he would probably have advised him not to answer any further questions.
This led the Court of Appeal to hold that the refusal of access to a solicitor ought to have
resulted in the exclusion of the confession evidence under section 78(1). In a similar vein,
the Court of Appeal held in R v Walsh that the confession evidence in question ought to
have been excluded under section 78(1), since, ‘having considered the matter, we can see
nothing in this case which could properly lead the court to the conclusion that the breach
of section 58 made no difference; or in other words that it was likely that the appellant
would have made the admissions in any event. The very highest it could be put, to our
minds, was that it was perhaps uncertain whether or not the presence of a solicitor would
have made any difference.’69
By contrast, in R v Alladice,
the appellant himself said in evidence . . . that he was well able to cope with the interviews;
that he had been given the appropriate caution before each of them; that he had under-
stood the caution and was aware of his rights . . . His reason for wanting a solicitor was
to have some sort of check on the conduct of the police during the interview . . . It may
seldom happen that a defendant is so forthcoming about his attitude towards the pres-
ence of a legal adviser. That candour does however simplify the task of deciding whether
the admission of the evidence ‘would have such an adverse effect on the fairness of the
proceedings’ that it should not have been admitted. Had the solicitor been present, his
advice would have added nothing to the knowledge of his rights which the appellant
already had.70
It had not, therefore, been wrong for the confession evidence not to have been excluded
under section 78(1).71
The notion that a confession will not be excluded from evidence under section 78(1) if
it is determined that the presence of a legal adviser would have ‘made no difference’, since

65  R v Walsh (1989) 91 Cr App R 161, 163. 66  See Chapter 5.

67  R v Walsh (1989) 91 Cr App R 161, 163. 68  [1988] QB 615.
69  (1989) 91 Cr App R 161, 163. See also R v Parris (1988) 89 Cr App R 68.
70  (1988) 87 Cr App R 380, 386–7. 71  See also R v Dunford (1990) 91 Cr App R 150.
104
Confessions

the defendant would have made the confession in any event, is a problematic one. It is
clear that such a determination can involve courts in a certain amount of post hoc ration-
alization of events. The desirability of this may be questioned. In any event, as Doherty
points out,
in finding that the defendant was not prejudiced by denial of a legal adviser in R v Alladice
the court presumed that the adviser’s role was simply to tell the suspect of his right to
silence. The other roles of the adviser, general support, checking aggressive questioning,
being a witness to the defendant’s version of events, which may have been both helpful
and necessary to an 18-year-old charged with robbery were ignored or dismissed by the
court.72

4.1.2  Absence of a Caution

Paragraph 10.1 of Code C provides: ‘A person whom there are grounds to suspect of an
offence . . . must be cautioned before any questions about an offence, or further questions
if the answers provide the grounds for suspicion, are put to them if either the suspect’s
answers or silence . . . may be given in evidence to a court in a prosecution.’ The Court
of Appeal has explained: ‘The rationale of paragraph 10.1 of Code C is . . . to ensure that
interviewees are informed of their rights, one of which is not to answer questions, and
to inform them of the use which might be made of their answers in criminal proceed-
ings . . . it seems to us that the principal purpose of such a procedure is to ensure, so far
as possible, that interviewees do not make admissions unless they wish to do so and are
aware of the consequences.’73
In R v Kirk,74 the defendant was convicted of robbery and manslaughter. The
incident involved an old woman who had her shopping bag snatched, fell, and sus-
tained injuries requiring surgery. Complications arose during the surgery and she
later died. Kirk was formally arrested in relation to an offence of assault on the vic-
tim, and in relation to the theft of the bag. He was not arrested for either robbery
or manslaughter, although by that stage all the material information was in the pos-
session of the police. The Court of Appeal held that the failure to caution Kirk in
relation to robbery and manslaughter before questioning him constituted a breach of
paragraph 10.1:
as it seems to us, where the police, having made an arrest, propose to question a sus-
pect . . . in relation to an offence which is more serious than the offence in respect of
which the arrest was made, they must, before questioning . . ., either charge the suspect
with the more serious offence, . . . or at least ensure that he is aware of the true nature of
the investigation. That is the thrust and purport of paragraph 10.1 of Code C . . . They
must do that so that he can give proper weight to that factor, namely the nature of
the investigation which is being conducted, when deciding whether or not to exercise
his right to obtain free legal advice . . . and in deciding how to respond to the questions
which the police propose to ask of him.75
Furthermore:
It seems to us that the Act of 1984 and the codes of practice which exist under it pro-
ceed upon the assumption that a suspect in custody will know why he is there and,

72  M Doherty, ‘Judicial Discretion: Victimising the Villains?’ (1999) 3 International Journal of Evidence

and Proof 44, 51.

73  R v Gill [2003] EWCA Crim 2256, [2003] 4 All ER 681 at [46]. 74  [2000] 1 WLR 567.
75  [2000] 1 WLR 567, 572.
Discre tionary E xclusion 105

when being interviewed, will know at least in general terms the level of offence in
respect of which he is suspected and, if he does not know, and as a result does not seek
legal advice and gives critical answers which he might not otherwise have given, the
evidence, as it seems to us, in normal circumstances, ought to be excluded pursuant
to section 78 . . .
. . . we cannot say that there are relevant admissions which would have come into
existence if the proper procedure had been followed . . .76
Exclusion of the impugned evidence would therefore have been appropriate. In R v Gill,
by contrast, the Court of Appeal reached the opposite conclusion, remarking: ‘There was
a breach of Code C which we would characterise as significant but it was certainly not
caused by any bad faith and could not fairly be regarded as involving a flagrant disregard
of the code’s provisions.’77 More crucially, and in a manner consistent with the approach
taken in Alladice, the Court also commented: ‘We do not think that it is arguable that, if a
caution had been administered, the appellants would have done anything different from
what they did. They had time to consider their position.’78

4.1.3  Absence of an Appropriate Adult

R v Aspinall79 concerned a breach of what is now paragraph 11.15 of Code C, which pro-
vides: ‘A juvenile or person who is mentally disordered or otherwise mentally vulner-
able must not be interviewed regarding their involvement or suspected involvement in a
criminal offence or offences, or asked to provide or sign a written statement under cau-
tion or record of interview, in the absence of [an] appropriate adult unless paragraphs
11.1 or 11.18 to 11.20 apply.’80 In his interview, which was conducted in the absence of an
appropriate adult, Aspinall told some lies. The Court of Appeal allowed his appeal against
conviction, effectively on the basis that the presence of an appropriate adult might have
made a difference:
Not only was this mentally disordered appellant deprived of the assistance, guidance,
and protection of an appropriate adult, but was also without any legal advice, apart
from the brief conversation with a duty solicitor over the telephone many hours previ-
ously . . . A significant part of the duty of an appropriate adult, is to advise about the pres-
ence of a solicitor at interview, and this appellant was deprived of such advice which in
all likelihood would have urged him to have legal representation.
. . . the appropriate adult or legal adviser would have urged him to tell the truth, because
patent lies could only harm his defence. The appellant’s credibility was undermined by
his lies . . .81

76  [2000] 1 WLR 567, 572–3. 77  [2003] EWCA Crim 2256, [2003] 4 All ER 681 at [44].
78  [2003] EWCA Crim 2256, [2003] 4 All ER 681 at [48]. See also R v Doyle [2002] EWCA Crim
1176; R v Senior [2004] EWCA Crim 454, [2004] 3 All ER 9.  In Ridehalgh v DPP [2005] EWHC 1100
(Admin), [2005] RTR 26, it was held that a conversation between a police inspector and the defendant had
‘amounted simply to a conversation and not to an interview within the definition of the Code of Practice’
([2005] EWHC 1100 (Admin), [2005] RTR 26 at [19]), and thus the failure to caution the defendant prior
to the conversation had not constituted a breach. If, however, this was wrong, ‘it does seem . . . inevitable
that the justices would have reached precisely the same decision about the defendant’s guilt in any event.
It is difficult if not impossible to see how any unfairness could have arisen by the admission of that con-
versation. The defendant was himself a police officer, and once he was cautioned he not only freely admit-
ted precisely the same matters as he had done in the previous conversation, he elaborated upon them.
There could have been no unfairness’ ([2005] EWHC 1100 (Admin), [2005] RTR 26 at [20]).
79  [1999] 2 Cr App R 115; see generally K Kerrigan, ‘Mentally Disordered Suspects: The Lessons of R v

Aspinall’ (2000) 64 Journal of Criminal Law 80.

80  Italics removed. 81  [1999] 2 Cr App R 115, 121–2.
106
Confessions

4.1.4  Breach of Recording Requirements

Breaches of the requirements for the recording of interviews may also result in the exclu-
sion of confession evidence under section 78(1). An ‘interview’ is defined as the ques-
tioning of a person regarding that person’s involvement or suspected involvement in a
criminal offence or offences, for the purpose of eliciting evidence (whether of answers or
silence) which may be given in court.82 In an attempt to protect suspects from the possi-
bility of fabrication, provision is made in the Codes for the recording of interviews. These
recording requirements ‘provide[] safeguards against the police inaccurately recording
or inventing the words used in questioning a detained person. . . . Again, equally impor-
tantly, the provisions, if complied with, are designed to make it very much more difficult
for a defendant to make unfounded allegations that he has been “verballed” which appear
credible.’83 What is required is that an ‘accurate record’ be made of each interview with
a suspect, whether or not the interview takes place at a police station.84 Code E provides
that audio recording is generally required of any interview conducted at a police station
with a person who has been cautioned in respect of an indictable offence.85 Recording is
to ‘be carried out openly to instil confidence in its reliability as an impartial and accu-
rate record of the interview’.86 Two recordings are to be produced: the master recording
which is to be sealed in the suspect’s presence, and a working copy.87 At the start of the
interview ‘the interviewer shall put to the suspect any significant statement or silence’.88
At the conclusion of the interview, the time is to be recorded and the recording stopped.
The master recording is to be sealed with a master recording label which is to be signed by
all present.89 The suspect is to be handed a notice explaining the use which will be made
of the audio recording and the arrangements for access to it, and explaining that a copy of
the recording will be supplied as soon as practicable if the person is charged or informed
that there is to be a prosecution.90 After the interview the interviewer is to make a note in
his or her pocket book of the fact that the interview has taken place and has been audibly
recorded, as well as its commencement time, duration, and date, and the identification
number of the master recording.91 Audio recording may not be required where it is not
reasonably practicable to audio record and it is considered on reasonable grounds that the
interview should not be delayed. In such cases the interview is to be recorded in writing
in accordance with Code C.92
The provisions of Code C relating to written records of interview apply where Code E
does not. A written record is to be made on the forms provided for this purpose or in the
interviewer’s pocket book.93 It ‘must be made and completed during the interview, unless
this would not be practicable or would interfere with the conduct of the interview’.94 If a
record is not completed during the interview the reason for this must be recorded in the
interview record.95 A record not made during the interview must be made as soon as prac-
ticable thereafter.96 A written interview record must be timed and signed by its maker.97
Unless it is impracticable the interviewee is to be given the opportunity to read the record
and to sign it as correct or to indicate the respects in which it is considered inaccurate.98
It is of note that Code F deals with the visual recording of interviews, and is relevant
where a visual recording is made of an interview even though there is currently no obliga-
tion to do so.

82  See Code C, paras 10.1 and 11.1A. 83  R v Keenan [1990] 2 QB 54, 63.
84  Code C, para 11.7(a). 85  Para 3.1. 86  Para 1.5A. 87  Para 2.2.
88  Para 4.6. 89  Para 4.18. 90  Para 4.19. 91  Para 5.1. 92  Paras 3.3 and 3.3A.
93  Para 11.7(b). 94  Para 11.7(c). 95  Para 11.10. 96  Para 11.8. 97  Para 11.9.
98  Para 11.11.
Discre tionary E xclusion 107

The importance attached to the recording requirements means that clear breaches of
these provisions, like clear breaches of the access to legal advice provisions, will typically
be considered significant and substantial and thus a good ground for the exclusion under
section 78(1) of confession evidence obtained as a result of the breaches.99 It seems clear,
however, that even serious breaches would not lead invariably to exclusion. As in the case
of breaches of section 58 and the provisions of Code C relating to access to legal advice,
the courts appear willing to engage in assessments of whether the defendant was likely
to have been actually prejudiced by the breaches. In R v Dunn, for example, the Court of
Appeal acknowledged that
there were serious breaches of the code by the police . . . First, there was no contempo-
raneous note of the disputed conversation. Secondly, the reason for the absence of a
contemporaneous record was not recorded in the police officer’s notebook. Thirdly, and
most important, the appellant was not given the opportunity to read the subsequent
record said to have been made within a few minutes of the completion of the interview,
so that he could either sign it as correct or indicate the respects in which he considered
it inaccurate.100
It was held, however, that the presence of the solicitor’s clerk during the disputed conversa-
tion could be taken into account in the exercise of discretion, and that this factor was ulti-
mately of sufficient weight to tip the balance in favour of not excluding the evidence. The
clerk was there to protect Dunn’s interests; she ‘could have intervened during the conver-
sation, before the relevant answers were given. Secondly, her mere presence would inhibit
the police from fabricating the conversation which did not in fact take place. Thirdly, if
they were to fabricate a conversation despite the inhibition, then it would not simply be
a question of their evidence against the evidence of the appellant.’ Had she not been pre-
sent, it would have been appropriate to exclude the evidence.101
The notion that the serious breaches could be overlooked simply on account of the
presence of the clerk seems somewhat crude and simplistic. Such an approach requires a
court to engage in the rather artificial task of determining whether tangible prejudice has
been caused to the defendant by the breach or breaches in question. In a similar vein, the
breach in Watson v DPP was held not to justify exclusion on the basis that the defendant
had not been tangibly disadvantaged thereby. Watson concerned a prosecution for driv-
ing with excess alcohol, and at issue was a breach of what is now paragraph 11.11 of Code
C in a context succinctly summarized by the Administrative Court as follows:
The appeal now effectively raises one issue: were the magistrates right to admit an admis-
sion allegedly made by the appellant that he was the driver of the motorcar at the time of
the accident? The admission was not recorded in contemporaneous notes made by the
officer who spoke to the appellant, and the appellant was not given an opportunity to
read the officer’s subsequently written up note and either sign it as correct, or indicate any
inaccuracies.102
The Court held that the justices had been entitled to admit the evidence: Watson had not
been deprived of any reasonable opportunity to deny that he was the driver, and indeed
had a series of opportunities at the police station to make such a denial.103 Furthermore,

99  See generally R v Keenan [1990] 2 QB 54 and R v Canale [1990] 2 All ER 187. See also R v Miller [1998]

Crim LR 209.
100  (1990) 91 Cr App R 237, 241. 101  (1990) 91 Cr App R 237, 243.
102  [2003] EWHC 1466 (Admin), (2003) 168 JP 116 at [2]‌.
103  [2003] EWHC 1466 (Admin), (2003) 168 JP 116 at [10], [12].
108
Confessions

‘the justices are entitled to have regard to the fact that the police officer was, as they found,
called away in an emergency’.104
Even if it is decided that a breach of the recording requirements does not justify exclu-
sion under section 78(1), it may nevertheless be incumbent upon the trial judge to direct
the jury on the significance of the breach. In the context of a dispute between the pros-
ecution and defence over what had been said by the accused in an interview, the Court of
Appeal noted in R v Dures: ‘It was essential that he make clear to the jury, as he did, that
the Code was based on an Act of Parliament, that there had been a breach of the Code,
that it was for the jury to decide whose evidence they accepted in relation to what had
been said, and that only if they were sure that the officers were telling the truth should
they rely on the disputed parts of the cell interviews.’105

4.2  Other Improprieties

Confession evidence may be excluded under section 78(1) on account of an impropriety
which does not constitute a breach of the Police and Criminal Evidence Act 1984 and/or
its associated Codes of Practice. In R v Mason,106 the police deliberately lied to Mason and
his solicitor that Mason’s fingerprint had been found on a fragment of glass at the scene
of the crime. The solicitor, influenced by this false information, advised Mason to answer
police questions and to give his explanation of any involvement he had had in the inci-
dent. The Court of Appeal held that the confession evidence ought to have been excluded
under section 78(1): ‘It is obvious from the undisputed evidence that the police practised a
deceit not only upon the appellant, which is bad enough, but also upon the solicitor whose
duty it was to advise him. In effect, they hoodwinked both solicitor and client. That was a
most reprehensible thing to do.’107
It is interesting to speculate whether the result in Mason would have been the same if
the police had deceived the accused only, rather than both the accused and his solicitor.
The tenor of the judgment of the Court of Appeal certainly suggests that the fact that
the solicitor was also deceived was considered important. What is unclear is whether it
was regarded as crucial, so that in its absence the Court of Appeal would have come to a
different conclusion. The seriousness with which the Court of Appeal in Mason took the
fact that the solicitor had been misled may be viewed in one sense as a logical corollary of
the importance which is accorded to the right to legal advice in the decisions examined
earlier on the consequences of section 58 and associated Code breaches. The right would
certainly ring hollow if solicitors were to provide legal advice on the basis of false or mis-
leading information deliberately provided by the police.

4.3  ‘Safety Interviews’

In R v Ibrahim it was argued in the Court of Appeal that evidence of certain ‘safety inter-
views’108 ‘should be excluded on public policy grounds. The argument, in summary, was
that the routine admission of these interviews into evidence against a defendant would

104  [2003] EWHC 1466 (Admin), (2003) 168 JP 116 at [12]. 105  [1997] 2 Cr App R 247, 264.
106  [1988] 1 WLR 139. See A Ashworth, ‘Should the Police Be Allowed to Use Deceptive Practices?’ (1998)
114 Law Quarterly Review 108, 113–14.
107  [1988] 1 WLR 139, 144.
108  See generally P Mendelle and A N Bajwa, ‘How Safe are Safety Interviews?’ (2009) 173 Criminal

Law and Justice Weekly 132; P Mendelle and A N Bajwa, ‘How Safe are Safety Interviews?’ [April 2010]
Counsel 24.
Discre tionary E xclusion 109

make it more likely that suspects would refuse to answer questions relating to public
safety issues. Thus the risks to the public as a result of the police remaining in ignorance
of material facts would be increased rather than diminished.’109 The observations made in
response by the Court of Appeal are self-explanatory:
Those suspected of terrorist offences, if rightly suspected, are likely to be able to provide
assistance to investigating officers performing their responsibilities for public safety.
An interview process which, so far as possible, enables the police to protect the pub-
lic is a necessary imperative. These interviews are variously described as ‘safety inter-
views’, or ‘urgent’ or ‘emergency interviews’. The suspect is interviewed for information
which may help the police to protect life and prevent serious damage to property to be
obtained. The question whether the results of such interviews should then be used as
evidence against the suspects . . . is delicate. . . .
. . . The circumstances in which it is directed by a senior police officer that safety
interviews should take place are operational, in short, how best, in a situation of
immediate urgency, to secure public safety. The pursuit of this objective with a sus-
pect who is invited to provide the police with relevant information may produce cru-
cial evidence incriminating him in the offence for which he has been detained, or
indeed other offences. The admission of the safety interviews or their fruits . . . in evi-
dence at a subsequent trial is subject to the ordinary principles governing a fair trial,
and the over-arching provisions in section 78 of the Police and Criminal Evidence
Act 1984 (‘PACE’). Much would turn on the nature of the warning or caution, if any,
given by the police to the suspect. Thus, for example, if the suspect were to be assured
in terms that any information provided by him would not be used against him, that
would provide a powerful argument against the admission of incriminating evidence
obtained in consequence. Much, too, may turn on whether the interviews produce
evidence directly relevant to the charge which led to the suspect’s original detention,
or whether the first connection that the prosecution may establish against him with
any offence arises directly from his full co-operation with them during the course
of the safety interview. As ever, these will be fact specific decisions, to be made in
the overall circumstances of each individual case. What however is clear is that the
legislative structure does not preclude the use of the evidence obtained in safety inter-
views and, given the existing safeguards available to a defendant and the obligation
on the trial judge to make the judgment necessary to enable him to exercise his dis-
cretion under section 78 of PACE, it would be wholly inappropriate for this court to
impose the kind of self-denying ordinance which the submission based on public
policy grounds would require.110

4.4  Analysis
The review in Section 3, and earlier in Section 4, of the mechanisms for excluding con-
fession evidence raises a number of points. Section 76(2) of the Police and Criminal
Evidence Act 1984, which requires that certain types of confession evidence must be
excluded, is interpreted narrowly. ‘Oppression’ in section 76(2)(a) is given a restricted
meaning, as is the concept of something ‘said or done’ in section 76(2)(b). Section
78(1), in spite of a number of oddities associated with the manner in which it has been
approached by the courts in the context of confession evidence, is certainly a great deal
more flexible. It is to be noted, however, that trial judges may well not be required to

109  [2008] EWCA Crim 880, [2009] 1 WLR 578 at [34].

110  [2008] EWCA Crim 880, [2009] 1 WLR 578 at [33], [36].
110
Confessions

adopt as proactive a stance in relation to section 78(1) as in relation to section 76. It was
seen earlier that a trial judge may, even in the absence of a defence submission, require
the prosecution to prove that a confession was not obtained in a manner inconsistent
with section 76(2); presumably this means that, if the prosecution fails to do so, the con-
fession will be excluded from evidence of the trial judge’s own accord. Where, however,
no submission is made that evidence ought to be excluded under section 78(1), the trial
judge would appear to be under no obligation to consider the issue of exclusion of his
or her own accord.111 This would seem to be the case even where there has been flagrant
abuse by the police of their powers in breach of the Police and Criminal Evidence Act
1984. Such a principle of non-intervention ‘does not mean that if he feels it appropriate
the judge should not make a pertinent enquiry of the advocate in the jury’s absence in
certain circumstances, but beyond that he need not go’.112

5  ‘Tainting’ of Subsequent Confessions

It will be clear from the discussion of Mohd Ali bin Burut in Section 3.1 that a confes-
sion may effectively be ‘tainted’ by earlier oppression. Similar principles would seem to
apply in relation to section 76(2)(b) and discretionary exclusion. Thus the fact that some-
thing ‘said or done’ has caused a confession to be inadmissible under section 76(2)(b)
may mean that a later but properly obtained confession is similarly tainted and thus also
automatically inadmissible under section 76(2)(b).113 Equally, an earlier impropriety may
render a later but properly obtained confession liable to be excluded from evidence under
section 78(1).
Whether a later but properly obtained confession will be deemed to be ‘tainted’ by an
earlier impropriety will depend, of course, on the circumstances of the particular case.
Some improprieties will obviously be of such a nature that they cannot be ‘cured’114 by a
properly conducted later interview, with the result that there ‘must inevitably be a con-
tinuing blight’115 on any confessions subsequently made. The question for the court is
whether there is any suggestion of oppression, inducement, stress, or pressures in the
earlier interview which may have continued to exert a ‘malign influence’ during the
later interview.116 A relevant consideration is whether the earlier breach was a flagrant or
merely technical one.117 Ultimately, however,
where an early interviewing is excluded admission of a later interview must be a matter of
fact and degree. It is likely to depend on a consideration of whether the objections leading
to the exclusion of the first interview were of a fundamental and continuing nature, and,
if so, if the arrangements for the subsequent interview gave the accused a sufficient oppor-
tunity to exercise an informed and independent choice as to whether he should repeat or
retract what he said in the excluded interview or say nothing.118

111  R v Goldenberg (1988) 88 Cr App R 285, 289.

112  R v Raphaie [1996] Crim LR 812; transcript from Smith Bernal.
113  R v McGovern (1990) 92 Cr App R 228. 114  R v Ismail [1990] Crim LR 109.
115  R v Glaves [1993] Crim LR 685.
116  Y v DPP [1991] Crim LR 917. See also R v Canale [1990] 2 All ER 187; R v Gillard (1990) 92 Cr App R 61.
117  R v Wood [1994] Crim LR 222.
118  R v Singleton [2002] EWCA Crim 459 at [10]. Taking a similar approach, the Supreme Court of

Canada has held (R v Wittwer 2008 SCC 33, [2008] 2 SCR 235 at [21]): ‘In considering whether a statement
is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It
is unnecessary to establish a strict causal relationship between the breach and the subsequent statement.
Mentally Handic apped Defendants and Warnings 111

Thus in R v Neil119 the Court of Appeal held that the judge should have exercised his
discretion to exclude the evidence, since Neil would have considered himself bound to
the admissions in the first statement, and the circumstances of the second interview
were insufficient to provide him with a safe and confident opportunity to withdraw
the admissions.120 In R v Singleton, on the other hand, ‘the objections leading to the
exclusion of the earlier interviews were not continuing and the appellant plainly had
ample opportunity to decide whether or not to volunteer a repetition of what he had
earlier said’.121

6  Mentally Handicapped Defendants and Warnings

Section 77(1) of the Police and Criminal Evidence Act 1984122 provides:
Without prejudice to the general duty of the court at a trial on indictment with a jury to
direct the jury on any matter on which it appears to the court appropriate to do so, where
at such a trial—
(a) the case against the accused depends wholly or substantially on a confession by
him; and
(b) the court is satisfied—
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the presence of an independent person,
the court shall warn the jury that there is special need for caution before convicting the
accused in reliance on the confession, and shall explain that the need arises because of
the circumstances mentioned in paragraphs (a) and (b) above.
Analogous provision is made in section 77(2) for summary trials: if a warning would be
required if the trial were on indictment with a jury, the court is to treat the case as one in
which there is a special need for caution before convicting the accused on the confession.
An ‘independent person’ is one other than ‘a police officer or a person employed for, or
engaged on, police purposes’, and a ‘mentally handicapped’ person is one ‘who is in a state
of arrested or incomplete development of mind which includes significant impairment of
intelligence and social functioning’.123
In R v Campbell124 the Court of Appeal noted, somewhat unhelpfully, that a case
depends ‘substantially on a confession’ if it would be substantially less strong without the
confession. In determining whether a person is ‘mentally handicapped’ for the purposes
of section 77, a court must not place undue weight on figures produced by intelligence
tests. Thus it does not necessarily follow, from the fact that someone who has achieved
certain scores has been held to be mentally handicapped in one case, that another person
who has achieved similar scores must also be held to be mentally handicapped. Each case
must be decided on its own facts.125 The ‘independent person’ must be a person who was

The statement will be tainted if the breach and the impugned statement can be said to be part of the same
transaction or course of conduct.’
119  [1994] Crim LR 441.
120  See also R v Nelson [1998] 2 Cr App R 399, in which Neil was distinguished.
121  [2002] EWCA Crim 459 at [11]. See also R v Ahmed [2003] EWCA Crim 3627.
122  I have drawn in this section on A L-T Choo, Evidence: Text and Materials (1998) 405–7.
123  S 77(3). 124  [1995] 1 Cr App R 522, 535. 125  R v Kenny, The Times, 27 July 1993.
112
Confessions

independent of the person to whom the confession was made; they cannot have been the
same person.126
An illustration of the application of section 77 is provided by R v Lamont.127 The
defendant had a reading and comprehension ability of a child of eight and an IQ of 73.
The trial judge’s failure to issue a section 77 warning led the Court of Appeal to quash
the conviction for attempted murder. The dearth of reported case law on section 77 is
probably attributable to the fact that, in many cases where section 77 was potentially
applicable, section 76 or section 78(1) might have been utilized instead to exclude the
confession evidence altogether. The relationship between the exclusion of confession
evidence and section 77 warnings was discussed briefly in R v Moss. The trial judge
in this case had treated the defendant as mentally handicapped and given the jury a
direction in accordance with section 77. The defendant’s appeal against conviction was
allowed by the Court of Appeal on the basis that the confession evidence should have
been excluded altogether:
Section 77 simply deals with ‘a confession,’ and in the simplest case a confession may
well be obtained from a defendant in one interview during a comparatively short
period of custody; that situation is clearly to be distinguished from one such as existed
in the present case where there were in all some nine interviews. It was not until the
fifth interview that any admission was made and all those interviews where admis-
sions were made, were made in the absence of a solicitor or any other independent
person.128
It should be noted that, ultimately, section 77 is of only limited value in addressing the
problems associated with confession evidence. Most notably, the provision applies only
to the mentally handicapped, and does not extend to the mentally ill. The reason given for
this was that the mentally ill, unlike the mentally handicapped, are not a readily identifi-
able group. Even if this reasoning were to be accepted, it fails to explain why juveniles,
who clearly constitute a readily identifiable group, are also excluded from the operation
of section 77. The exclusion of juveniles creates the anomaly that section 77 applies to an
adult with a mental age of 10, but not to a 10-year-old.129

7  Withdrawal of the Case from the Jury

The Court of Appeal has held that
where (1) the prosecution case depends wholly upon confessions; (2) the defendant suf-
fers from a significant degree of mental handicap; and (3) the confessions are uncon-
vincing to a point where a jury properly directed could not properly convict upon them,
then the judge, assuming he has not excluded the confessions earlier, should withdraw
the case from the jury. The confessions may be unconvincing, for example, because
they lack the incriminating details to be expected of a guilty and willing confessor, or
because they are inconsistent with other evidence, or because they are otherwise inher-
ently improbable. Cases depending solely or mainly on confessions, like cases depend-
ing upon identification evidence, have given rise to miscarriages of justice. We are
therefore of opinion that when the three conditions tabulated above apply at any stage

126  R v Bailey [1995] 2 Cr App R 262. 127  [1989] Crim LR 813.

128  (1990) 91 Cr App R 371, 377. See also R v Cox [1991] Crim LR 276.
129  See A L-T Choo, ‘Confessions and Corroboration: A Comparative Perspective’ [1991] Criminal Law

Review 867, 869; P Mirfield, Confessions (1985) 166.

Partly Adver se S tatements 113

of the case, the judge should, in the interests of justice, take the initiative and withdraw
the case from the jury.130
To confine this judicial power to cases of mental handicap would seem, however, to con-
stitute an unnecessary limitation. It is strongly arguable that the power to withdraw the
case from the jury should be exercisable wherever the prosecution case depends wholly
on confessions which are so unconvincing that no properly directed jury could properly
convict on them. It should be irrelevant whether the unreliability of the confessions is
attributable to mental handicap or to some other factor.

8  Partly Adverse Statements

Statements made by accused persons may contain both exculpatory and inculpatory
remarks. Such statements are known as partly adverse statements or mixed statements.
It has been held that, assuming that the inculpatory part of the statement is admissible
in evidence as a confession, the exculpatory part will also be admissible as evidence of
the facts contained in it.131 This principle applies to oral statements as well as to written
ones.132 In R v Sharp,133 the House of Lords approved the following statement of Lord Lane
CJ in R v Duncan:
Where a ‘mixed’ statement is under consideration by the jury in a case where the defend-
ant has not given evidence, it seems to us that the simplest, and, therefore, the method
most likely to produce a just result, is for the jury to be told that the whole statement, both
the incriminating parts and the excuses or explanations, must be considered by them in
deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury
that the exculpatory parts of the statement are something less than evidence of the facts
they state. Equally, where appropriate, as it usually will be, the judge may, and should,
point out that the incriminating parts are likely to be true (otherwise why say them?),
whereas the excuses do not have the same weight.134
Not only may the judge point out that the exculpatory parts do not carry the same weight
as the inculpatory parts, but the House of Lords has also made it clear that ‘a judge is
entitled to comment adversely on the quality of the exculpatory parts of a mixed state-
ment which has not been tested by cross-examination’ because of the accused’s failure to
testify.135
The Court of Appeal in R v Holloran expressed the view, without deciding the matter
definitively, that, in the interests of ensuring a fair trial, ‘once an interview transcript has
gone in before the jury and it contains a defence put forward by a defendant, the jury’s
attention should normally be directed to that defence when the defendant does not give
evidence, even if the interview is wholly self-exculpatory’.136

130  R v McKenzie [1993] 1 WLR 453, 455. R v Galbraith [1981] 1 WLR 1039, discussed in Chapter 3, was

applied. See also R v Wood [1994] Crim LR 222.

131  See generally D Birch, ‘The Sharp End of the Wedge: Use of Mixed Statements by the Defence’ [1997]

Criminal Law Review 416.

132  R v Polin [1991] Crim LR 293.
133  [1988] 1 All ER 65. See also R v Grayson [1993] Crim LR 864 and R v Downes and Rawlinson, The

Times, 10 Dec 1993.
134  (1981) 73 Cr App R 359, 365. See also Von Starck v R [2000] 1 WLR 1270; R v Holloran [2003] EWCA

Crim 3282 at [28]; R v Lazarus [2004] EWCA Crim 1962. For consideration of Duncan by the Supreme
Court of Canada, see R v Rojas 2008 SCC 56, [2008] 3 SCR 111; R v Illes 2008 SCC 57, [2008] 3 SCR 134.
135  R v Aziz [1995] 3 WLR 53, 59. 136  [2003] EWCA Crim 3282 at [30].
114
Confessions

9  Use of Confession Contravening Section 76(2)

While a confession obtained in contravention of section 76(2) may not be used by the
prosecution to prove the accused’s guilt, there are permissible uses to which it may be put.

9.1  Facts Discovered in Consequence of Confession

Suppose that non-confession evidence has been discovered by the police in consequence
of a confession that is inadmissible in evidence under section 76(2).137 Does this deriva-
tive evidence or ‘fruit of the poisonous tree’ constitute admissible evidence? If so, is the
prosecution permitted to mention that it was discovered in consequence of a confession?
The effect of section 76(4)(a), read in conjunction with section 76(6), is as follows. The
fact that a confession is wholly or partly excluded pursuant to section 76(2) ‘shall not
affect the admissibility in evidence . . . of any facts discovered’ as a result of the wholly
excluded confession, or the excluded part of the confession, as the case may be. In other
words, derivative evidence is admissible as a matter of law. The prosecution is, however,
forbidden by section 76(5) from introducing evidence that the fact which was discovered
was discovered as a result of a statement made by the accused; only the defence may intro-
duce such evidence if it so wishes.
This legislative strategy is consistent with a number of judicial decisions at common
law. In the old case of R v Warickshall,138 Warickshall confessed to receiving stolen prop-
erty, and as a result of this confession the stolen property was discovered hidden in her
bed in her lodgings. It was held that the confession was inadmissible in evidence, but that
this did not affect the admissibility of the evidence of the discovery of the stolen property.
No reference could, however, be made to the fact that the stolen property was discovered
as a result of the inadmissible confession.
In R v Berriman, the accused was charged with concealing the birth of a child. She was
asked by a magistrate where she had put the child’s body, but her answer was not admit-
ted in evidence. The prosecution then sought to ask a witness whether, in consequence
of the answer improperly elicited by the magistrate from the accused, a search had been
made at a particular spot and relevant facts discovered. Erle J said: ‘No! Not in conse-
quence of what she said. You may ask him what search was made, and what things were
found, but under the circumstances, I cannot allow that proceeding to be connected
with the prisoner.’139
In the Scottish case of Chalmers v HM Advocate,140 the accused, who was suspected of
murder, was interrogated at a police station, making a confession that would have been
inadmissible in evidence. He was then taken to a cornfield where he pointed out the place
where a purse belonging to the deceased was found. The High Court of Justiciary held
that prosecution evidence of the visit to the cornfield had been incorrectly admitted by
the trial judge.
In Lam v R,141 the three defendants were charged with murder. The prosecution
case was that they had stabbed the deceased to death with a knife which they had

137  I have drawn in this section on A L-T Choo, Evidence: Text and Materials (1998) 408–9.
138  (1783) 1 Leach 263, 168 ER 234. 139  (1854) 6 Cox 388, 389 (italics in original).
140  1954 SLT 177.
141  [1991] 2 AC 212. See also Timothy v The State [2000] 1 WLR 485, 493: ‘the prosecution cannot rely

on the fact that the guns were found as a result of the police being taken to the site and the guns being
pointed out to them any more than the prosecution could rely on the knife having been found as a result of
Use of Confession Contr avening Sec tion 76(2) 115

then thrown into the sea. The trial judge held that the defendants’ confessions were
inadmissible in evidence, but admitted evidence of a video recording which showed
the first defendant directing the police to the waterfront, where each of the defend-
ants in turn made gestures indicating the throwing of the knife into the water. The
judge also admitted police evidence describing these actions of the defendants which
led to the recovery of the knife. On appeal to the Privy Council, it was held that
the evidence of the video recording, and the police evidence, had been incorrectly
admitted.
The prohibition of the introduction by the prosecution of evidence that the
non-confession evidence was discovered as a result of a confession by the accused can
have important practical implications, and prove a substantial impediment for the
prosecution. In cases where the non-confession evidence was discovered in a ‘neutral’
place unconnected with the defendant, such evidence will be of little relevance or value
in the absence of evidence of what led the police to its discovery. In Chalmers v HM
Advocate Lord Justice-General Cooper said:
If the police had simply produced, and proved the finding of, the purse, that evidence
would have carried them little or no distance in this case towards implicating the
appellant. It was essential that the appellant should be linked up with the purse, either
by oral confession or by its equivalent—tacit admission of knowledge of its wherea-
bouts obtained as a sequel to the interrogation.142
And the Privy Council noted in Lam:
Of course in the case of Jane Warickshall the fact that the stolen property was found
hidden in her bed implicated her as the receiver without introducing any part of her
confession in evidence, whereas in the present appeal the mere finding of the knife in
the sea in no way implicated the defendants. What implicated them was their admission
that they had thrown it into the sea.143

9.2  Evidence of Manner of Speech, Writing, or Expression

Section 76(4)(b) of the Police and Criminal Evidence Act 1984 provides that, where a
confession ‘is relevant as showing that the accused speaks, writes or expresses himself
in a particular way’, the fact that the confession is wholly or partly excluded pursuant to
section 76(2) ‘shall not affect the admissibility in evidence . . . of so much of the confession
as is necessary to show that he does so’. In R v Voisin,144 a body was found together with
a piece of paper with the words ‘Bladie Belgiam’ written on it. In the police station, the
defendant, at the request of the police to write the words ‘Bloody Belgian’, wrote ‘Bladie
Belgiam’. It was held that the writing was admissible in evidence to show that the defend-
ant spelt the words in that way. Under section 76(4)(b) this evidence would be admis-
sible even if the written words were part of a confession inadmissible in evidence under
section 76(2).

the appellants’ directions in Lam Chi-ming’s case once the finding of the guns is seen to be the result of an
involuntary confession whether by writing, orally or by conduct.’
142  1954 SLT 177, 183.
143  [1991] 2 AC 212, 217. All the preceding cases may be contrasted with R v Gould (1840) 9 Car & P
364, 173 ER 870, in which a lantern was found as a result of an inadmissible confession made by a prisoner
charged with burglary. A witness was permitted to give evidence that he had made a search for the lantern
as a result of something that the prisoner had said.
144  [1918] 1 KB 531.
116
Confessions

9.3  The Role of Section 78(1)

Two points should be made. The first is that, even though admissible as a matter of law,
evidence of facts discovered in consequence of an inadmissible confession, and evidence
of manner of speech, writing, or expression derived from an inadmissible confession,
may still be liable to be excluded in the exercise of discretion under section 78(1) of the
Police and Criminal Evidence Act 1984 (or at common law).145 If, for example, a con-
fession is held to be inadmissible under section 76(2) because it has been obtained in a
particularly egregious manner, serious consideration should be given by the trial judge to
whether evidence of facts discovered in consequence of the confession should be excluded
under section 78(1). The Grand Chamber of the European Court of Human Rights would
appear to advocate such an approach:
The repression of, and the effective protection of individuals from, the use of investigation
methods that breach [A]‌r t 3 may . . . require, as a rule, the exclusion from use at trial of real
evidence which has been obtained as the result of any violation of [A]rt 3, even though that
evidence is more remote from the breach of [A]rt 3 than evidence extracted immediately
as a consequence of a violation of that article. Otherwise, the trial as a whole is rendered
unfair.146
It is true that, as just discussed, derivative evidence will in many cases be of little or no
use to the prosecution because of the inadmissibility of evidence of how it was obtained.
However, there will always be cases like Warickshall where the derivative evidence can,
in effect, ‘stand alone’. It is in the context of such cases that consideration of whether the
derivative evidence should be excluded in the exercise of discretion will be particularly
important.
The second issue concerns the prohibition in section 76(5) of the introduction by the
prosecution of evidence that the fact which was discovered was discovered as a result of a
statement made by the accused. This prohibition relates only to confessions inadmissible
in evidence as a matter of law under section 76(2), and does not extend to confessions
excluded from evidence in the exercise of discretion under section 78(1). The discussions
in Section 4 have demonstrated, however, that there is a considerable overlap between the
operation of section 76(2) and section 78(1): in many instances, the same confession may
be legitimately excluded from evidence under either section 76(2) or section 78(1), and
it is often a matter of chance whether a particular confession is excluded from evidence
under section 76(2) or under section 78(1).147 Surely consistency requires, therefore, that
an analogous principle to that in section 76(5) should apply in relation to confessions
excluded from evidence in the exercise of discretion under section 78(1). This result can
be achieved by using section 78(1) itself to exclude evidence that the fact which was dis-
covered was discovered as a result of the statement already excluded from evidence under
section 78(1).

145  See P Mirfield, Silence, Confessions and Improperly Obtained Evidence (1997) 225.
146  Gäfgen v Germany (2010) 52 EHRR 1 at [178]. On the facts of the case, however, the Grand Chamber
found no violation of Art 6 as the conviction had been based not on the impugned evidence but exclusively
on independent evidence. ‘The impugned real evidence was not necessary, and was not used to prove him
guilty’: (2010) 52 EHRR 1 at [180]. See generally M Spurrier, ‘Gäfgen v Germany: Fruit of the Poisonous Tree’
[2010] European Human Rights Law Review 513.
147  See also D J Birch, ‘The Pace Hots up: Confessions and Confusions under the 1984 Act’ [1989] Criminal

Law Review 95; D Feldman, ‘Regulating Treatment of Suspects in Police Stations: Judicial Interpretation
of Detention Provisions in the Police and Criminal Evidence Act 1984’ [1990] Criminal Law Review 452; R
May, ‘Admissibility of Confessions: Recent Developments’ (1991) 55 Journal of Criminal Law 366.
Confession Admissible in E vidence only agains t Maker 117

10  Confession Admissible in Evidence only against Maker

A confession is admissible in evidence only against its maker, and not against anyone else
that the statement may inculpate. Thus, if the confession of an accused (‘A’) also incul-
pates a co-accused (‘C’), the prosecution may use the confession only against A. As Lord
Steyn explained in R v Hayter:
In a joint trial the prosecution may not rely on what the maker of a confession said against
a co-accused. This is a general rule of law. It is buttressed by a rule of practice requiring a
trial judge to direct the jury to ignore a confession made by an accused in considering the
case against a co-defendant.148
Given that a confession (or a mixed statement) made by A is not admissible in evidence
against C, the trial judge may permit the statement to be edited so that, for example, C’s
name is disguised or deleted, or the part of the statement incriminating C is excised alto-
gether. But, in deciding whether to permit editing, the trial judge should keep in mind
that in certain circumstances editing may result in confusion of the jury. As the Court of
Appeal observed in R v Jefferson:
For example, in a case involving many defendants whose names are sought to be excised
and substituted by some other designation, such as letters of the alphabet, it could con-
fuse the jury. Equally, the editing of descriptive passages and their substitution by oth-
ers may leave the jury with a false impression—a bowdlerised version—of the statement
credited to the defendant concerned. There can also be problems of selection in which
[the non-confessing defendant] seeks to have excised from his co-defendant’s statement
in interview unfavourable references to himself but to retain favourable ones. There may
be other problems for the fair conduct of a trial in a trial judge agreeing too readily to
editing . . .149
It would appear, moreover, that C has no right to demand that the statement be edited in
such a manner. A is entitled to refuse to consent to any proposed editing, and to insist that
the statement be heard by the jury as a whole. This principle was affirmed by the Court
of Criminal Appeal in R v Gunewardene150 and, more recently, by the Privy Council in
Lobban v R.151 In the words of the Court of Criminal Appeal:
It not infrequently happens that a prisoner, in making a statement, though admitting his
or her guilt up to a certain extent, puts greater blame upon the co-prisoner, or is assert-
ing that certain of his or her actions were really innocent and it was the conduct of the
co-prisoner that gave them a sinister appearance or led to the belief that the prisoner
making the statement was implicated in the crime. In such a case that prisoner would
have a right to have the whole statement read and could, with good reason, complain if the
prosecution picked out certain passages and left out others.152
This is a consequence of the principle, encountered and criticized elsewhere in this book,
that there is no discretion to exclude evidence sought to be relied upon by a defendant.
The evidence incriminating C, being relevant to A’s own defence, cannot be excluded in
the exercise of discretion.153 The Privy Council remarked:

148  [2005] UKHL 6, [2005] 1 WLR 605 at [7]‌. 149  [1994] 1 All ER 270, 285.
150  [1951] 2 KB 600. 151  [1995] 1 WLR 877. 152  [1951] 2 KB 600, 610–11.
153  See generally Lobban v R [1995] 1 WLR 877 and the discussions in Chapter 1. The Privy Council in

Lobban thought that in so far as the decisions in R v Silcott [1987] Crim LR 765 and R v Mathias [1989] Crim
118
Confessions

Inevitably, the legal principles as their Lordships have stated them result in a real risk of preju-
dice to co-defendants in joint trials where evidence is admitted which is admissible against
one defendant but not against the other defendants. One remedy is for a co-defendant to
apply for a separate trial. The judge has a discretion to order a separate trial. The practice is
generally to order joint trials. But their Lordships observe that ultimately the governing test
is always the interests of justice in the particular circumstances of each case. If a separate trial
is not ordered, the interests of the implicated co-defendant must be protected by the most
explicit directions by the trial judge to the effect that the statement of one co-defendant is not
evidence against the other.154
It is doubtful, however, that giving a defendant an absolute right to object to his or her con-
fession being edited is likely to serve the interests of justice in the long run. Surely, where
reference to the name of a non-confessing defendant is in no way exculpatory of the confess-
ing defendant, the latter ought not to have the right to object to editing. It is the danger of
prejudice to the non-confessing defendant which should be the prevailing consideration in
such a situation.
A radically different approach is taken by the US Supreme Court to the issue of a confes-
sion that implicates a co-defendant. In contrast to the position in England and Wales, much
less faith is placed in the ability of the jury to follow an instruction to use the confession
against the confessor only. The leading case of Bruton v US155 was succinctly described in a
more recent decision of the US Supreme Court as follows:
Bruton involved two defendants accused of participating in the same crime and tried jointly
before the same jury. One of the defendants had confessed. His confession named and incrim-
inated the other defendant. The trial judge issued a limiting instruction, telling the jury that it
should consider the confession as evidence only against the codefendant who had confessed
and not against the defendant named in the confession. Bruton held that, despite the limiting
instruction, the Constitution forbids the use of such a confession in the joint trial.156
The Court in Bruton thought that ‘there are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the consequences of failure so vital
to the defendant, that the practical and human limitations of the jury system cannot be
ignored. . . . Such a context is presented here, where the powerfully incriminating extraju-
dicial statements of a codefendant, who stands accused side-by-side with the defendant,
are deliberately spread before the jury in a joint trial.’157
It would appear that even editing will not suffice to allow the prosecution to use the
confession, if it remains possible for the jury to infer that it is the co-accused whose iden-
tity is being concealed. In the words of the Supreme Court in Gray v Maryland:
Consider a simplified but typical example, a confession that reads ‘I, Bob Smith, along
with Sam Jones, robbed the bank.’ To replace the words ‘Sam Jones’ with an obvious blank
will not likely fool anyone. A juror somewhat familiar with criminal law would know
immediately that the blank, in the phrase ‘I, Bob Smith, along with  , robbed the bank,’
refers to defendant Jones.158

LR 64 ‘suggest that a judge in a criminal trial has a discretionary power at the request of one defendant to
exclude evidence tending to support the defence of another defendant they are contrary to well established
principles and do not correctly reflect the law’: [1995] 1 WLR 877, 889. In Silcott and Mathias the view was
taken that to require a jury to follow a direction, even a strong direction, not to use the evidence against a
non-confessing defendant is to require mental gymnastics of Olympic standards.
154  Lobban v R [1995] 1 WLR 877, 889. 155  391 US 123 (1968).
156  Gray v Maryland 523 US 185, 188 (1998). 157  Bruton v US 391 US 123, 135–6 (1968).
158  523 US 185, 193 (1998).
Use of a Co -Defendant ’ s Confession by a Defendant 119

The reasoning and general approach of the US Supreme Court, being more cognizant of
the potential prejudice to the non-confessing defendant, has much to commend it.
The principle that the prosecution cannot use a confession by a defendant against a
co-defendant does not, however, affect the following principle. In a situation where a
defendant’s guilt is relevant to whether a co-defendant, who is alleged to be jointly liable
for the offence, is guilty (such as where they ‘had been in each other’s company at the time
of the offence’159), it is permissible for the jury to use the defendant’s confession as the
basis for establishing the defendant’s guilt and then to use that finding of guilt in deter-
mining whether the co-defendant is also guilty.160

11  Use of a Co-Defendant’s Confession by a Defendant

Where D1 and D2 are co-defendants and the prosecution has succeeded in adducing
D2’s confession in evidence, D1 will be at liberty to rely on the confession for D1’s own
purposes. Disputes about the admissibility of a co-defendant’s confession on behalf of
a defendant may however arise where the confession has not already been admitted in
evidence for the prosecution.
Following the common law position as explained in R v Myers,161 section 76A of the
Police and Criminal Evidence Act 1984, inserted by the Criminal Justice Act 2003, now
provides that the same two grounds for mandatory exclusion of confession evidence
sought to be introduced by the prosecution apply where a defendant is seeking to adduce a
co-defendant’s confession162 in evidence.163 The difference is the obvious one that the pre-
sumption of inadmissibility, once it is ‘represented’ that the confession was or may have
been obtained by one of the two proscribed methods, is to be rebutted by a defendant on
the balance of probabilities rather than, as in the case of the prosecution, beyond reason-
able doubt. As what is at issue is defence evidence, the court may not exclude in the exer-
cise of discretion (for example, because of breaches of the Codes of Practice) evidence that
is admissible for a defendant under section 76A.164 The operation of section 76A ‘raises
the intriguing possibility that, given the difference between the two standards of proof, if
both prosecution and [a defendant] sought to adduce a confession [by another defendant]
on the voire dire, the Judge might be persuaded to allow its adduction by the latter but not
by the Crown. . . . Thus, and rather confusingly, a trial Judge would have to direct the jury
that it was not evidence for the Crown but only for the [defendant].’165

159  R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 at [84] per Lord Brown of Eaton-under-Heywood.
160  R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 (see generally C McGourlay, ‘Is Criminal Practice
Impervious to Logic?: R v Hayter’ (2006) 10 International Journal of Evidence and Proof 128; A Metzer, ‘Life
in Crime’ (2005) 149 Solicitors’ Journal 290); Persad v State of Trinidad and Tobago [2007] UKPC 51, [2007]
1 WLR 2379.
161  [1997] 3 WLR 552. See generally J Hartshorne and A L-T Choo, ‘“Hearsay-Fiddles” in the House of

Lords’ (1999) 62 Modern Law Review 290; M Hirst, ‘Confessions as Proof of Innocence’ [1998] Cambridge
Law Journal 146; J D Jackson, ‘The Law on Defence Use of Confessions:  Some Clarification and Some
Confusion’ [1998] 4 Archbold News 5.
162  Not the confession of a former co-defendant who has pleaded guilty: R v Finch [2007] EWCA Crim 36,

[2007] 1 WLR 1645. The House of Lords refused leave to appeal: [2007] 1 WLR 2613.
163  See J Hartshorne, ‘Defensive Use of a Co-Accused’s Confession and the Criminal Justice Act 2003’

(2004) 8 International Journal of Evidence and Proof 165.

164  R v Myers [1997] 3 WLR 552.
165  G Durston, ‘The Admissibility of Co-Defendants’ Confessions under the Criminal Justice Act 2003’

(2004) 168 Justice of the Peace 488, 488–9.

120
Confessions

12  The Voir Dire Hearing

The question whether a confession is to be admitted in evidence may be determined at
a pre-trial hearing.166 If such a hearing has not taken place, then the determination will
typically be made at a voir dire hearing, in accordance with the following procedure:
It is primarily the responsibility of defence counsel to inform the prosecution and the
judge in advance and in the absence of the jury of an intended objection to the admis-
sibility of statements of a defendant . . . At the appropriate time counsel must ask the judge
to request the jury to withdraw so that a matter can be raised on which the ruling of the
judge is required. No discussion of an intended objection must take place in front of the
jury. The judge should simply tell the jury that a matter has arisen on which his ruling is
required and that they must please retire for the time being.167
It was seen in Section 3 that section 76(3) of the Police and Criminal Evidence Act 1984
permits a court of its own motion to require the prosecution to prove that a confession
was not obtained in a manner proscribed by section 76(2). A trial judge would be unlikely,
however, to insist upon the holding of a voir dire hearing against the wishes of defence
counsel, who may for tactical reasons prefer the grounds for inadmissibility to be aired
before the jury in the trial proper. This course of action would mean, of course, ‘that the
jury [would] hear the impugned statement whether admissible or not’. It would therefore
be necessary for the trial judge, if he or she doubts that the statement is admissible in
evidence, to ‘direct the jury to disregard it, or, if the statement is essential to sustain the
prosecution case, direct an acquittal’.168
It would appear that, in a trial with a jury, ‘the jury ought not to be informed of a
judge’s decision on a voire dire held to determine the admissibility of a confession’. This
is because
the decision on the admissibility of a confession after a voire dire is the sole responsibility
of the judge. There is no logical reason why the jury should know about the decision of the
judge. It is irrelevant to the consideration by the jury of the issues whether the confession
was made and, if so, whether it is true. There is also no practical reason why the jury need
to be informed of the judge’s decision . . . Moreover, . . . the knowledge by the jury that the
judge has believed the police and disbelieved the defendant creates the potentiality of
prejudice. A jury of laymen, or some of them, might be forgiven for saying: ‘Well the judge
did not believe the defendant, why should we believe him?’169
May the prosecution utilize, in the trial proper, statements made by an accused in a voir
dire hearing held to determine whether a confession should be excluded from evidence? 170
This remains unsettled. The position at common law171 was as follows:
• Irrespective of whether the confession evidence had been admitted or excluded, the
prosecution could not adduce, as part of its case in chief, evidence of statements
made by the accused in the voir dire hearing.

166  See the discussion of pre-trial hearings in Chapter 1.

167  Mitchell v R [1998] 2 WLR 839, 846. 168  Ajodha v The State [1982] AC 204, 223.
169  Mitchell v R [1998] 2 WLR 839, 845–6. See also Thompson v R [1998] 2 WLR 927, 954; Constance v The

State, unrep, 16 Dec 1999 (PC).

170  For a fuller discussion, see P Mirfield, Silence, Confessions and Improperly Obtained Evidence

(1997) 71–5.
171  Wong Kam-Ming v R [1980] AC 247; R v Brophy [1982] AC 476.
Reform 121

• If, however, the voir dire hearing had resulted in the admission in evidence of the con-
fession, then the prosecution could cross-examine the accused on any inconsistencies
between his statements in the voir dire hearing and his testimony in the trial proper,
with a view to discrediting that testimony.
The common law position has arguably been reversed by section 76 of the Police and Criminal
Evidence Act 1984: it is arguable that any incriminating statements made by the accused in
the voir dire hearing would themselves constitute confessions which may be given in evidence
by the prosecution so long as they were obtained in a manner consistent with section 76(2) (as
would presumably be the case). If this argument is correct, then it is surely in the interests of
justice that the trial judge’s exclusionary discretion (either at common law or under section
78(1)) should be invoked in appropriate cases to exclude such statements from evidence.

13  Reform
In the first decade of the new millennium, the topic of reform of the law of confessions
provoked far less debate and discussion than it had done a decade earlier. Hopes that the
Runciman Royal Commission on Criminal Justice might make fundamental recommenda-
tions for improvement were dashed when its Report in 1993 recommended no substantial
change at all in the law in the area. Since that time, other topics in the law of criminal evi-
dence and procedure have tended to take centre stage.
It has been seen in this chapter that a number of mechanisms are currently available in
English law for dealing with confession evidence. Apart from the obvious devices of man-
datory and discretionary exclusion, section 77 warnings and withdrawal of the case from
the jury may be relevant in certain situations. A  question worth pondering is whether
the grounds for mandatory exclusion should be extended. It is questionable, for example,
whether an exclusionary discretion is sufficient where fundamental issues like access to legal
advice and the audio recording of interviews are concerned. It is certainly arguable that an
absolute rule rendering inadmissible in evidence any confession made in the absence of a
legal adviser, or any confession that is not audibly recorded, should be introduced. Such a
rule would go some considerable way further in ensuring that unreliable confessions are
not given in evidence. The counterargument, which found favour with the Runciman Royal
Commission, is that such a rule would be undesirable as it would lead to the exclusion of
reliable evidence: confessions made in the absence of legal advice, or which are not audibly
recorded, will in some circumstances be perfectly reliable.172 This seems to miss the point. An
inevitable consequence of any rule designed to ensure that unreliable evidence is inadmis-
sible is the exclusion of some reliable evidence. And the more rigid and absolute the rule, the
more likely this is to happen. The issue, surely, is whether the introduction of an absolute rule
is justified in the special context of confession evidence, the admission of which has resulted
in so many major miscarriages of justice.
The United States, it is to be noted, continues to adhere strictly to a general rule pro-
hibiting the admission in evidence of a confession obtained without ‘Miranda warnings’
having been administered.173 Miranda v Arizona174 is a landmark decision of the US

172  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 60–2.

173  See generally J J Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the
Balance between Freedom and Order (2011) Ch 3.
174  384 US 436 (1966). See generally S O’Doherty, ‘Miranda Rights—A View across the Pond’ (2004)

168 Justice of the Peace 647; L S Wrightman and M L Pitman, The Miranda Ruling: Its Past, Present, and
Future (2010).
122
Confessions

Supreme Court. ‘Prior to Miranda’, the Court has noted, ‘we evaluated the admissibility
of a suspect’s confession under a voluntariness test.’175 In Miranda, however, the Court
held that
the admissibility in evidence of any statement given during custodial interrogation of a
suspect would depend on whether the police provided the suspect with four warnings.
These warnings (which have come to be known colloquially as ‘Miranda rights’) are: a
suspect ‘has the right to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an attorney, and that if he can-
not afford an attorney one will be appointed for him prior to any questioning if he so
desires’.176
The Court confirmed more recently, in US v Dickerson,177 that it was not possible for
Congress to overrule Miranda and reintroduce a simple voluntariness test by means of
a legislative enactment providing that ‘a confession . . . shall be admissible in evidence
if it is voluntarily given. Before such confession is received in evidence, the trial judge
shall, out of the presence of the jury, determine any issue as to voluntariness. If the
trial judge determines that the confession was voluntarily made it shall be admitted in
evidence’.
There were many suggestions in the early 1990s for the introduction of a require-
ment that confession evidence should be corroborated, or at least supported, by other
evidence in order to be admissible. It is certainly arguable that the introduction of such
a requirement would, together with the general requirement in Code E that interviews
be audibly recorded, go some considerable way in reducing the likelihood of confessions
being fabricated in the future.178 Would, however, a corroboration, or supporting evi-
dence, requirement for confessions lead to the widespread acquittal or non-prosecution
of the guilty? Studies have shown that the introduction of such a requirement would
affect only a tiny percentage of cases. One study, which looked solely at magistrates’
court cases, revealed that in less than 1.4 per cent of cases did the prosecution rely on

175
  US v Dickerson 530 US 428, 432–3 (2000).
176
  US v Dickerson 530 US 428, 435 (2000), quoting Miranda v Arizona 384 US 436, 479 (1966).
177
  530 US 428 (2000). See generally P G Cassell, ‘The Paths Not Taken: The Supreme Court’s Failures in
Dickerson’ (2001) 99 Michigan Law Review 898; Y Kamisar, ‘Foreword: From Miranda to § 3501 to Dickerson
to  . . .’ (2001) 99 Michigan Law Review 879; S R Klein, ‘Identifying and (Re)Formulating Prophylactic Rules,
Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure’ (2001) 99 Michigan Law Review
1030; R A Leo, ‘Questioning the Relevance of Miranda in the Twenty-First Century’ (2001) 99 Michigan Law
Review 1000; L Magid, ‘Deceptive Police Interrogation Practices: How Far Is too Far?’ (2001) 99 Michigan Law
Review 1168; P Mirfield, ‘Miranda Exclusionary Rule Re-Affirmed: US v Dickerson’ (2001) 5 International
Journal of Evidence and Proof 61; S J Schulhofer, ‘Miranda, Dickerson, and the Puzzling Persistence of Fifth
Amendment Exceptionalism’ (2001) 99 Michigan Law Review 941; D A Strauss, ‘Miranda, the Constitution,
and Congress’ (2001) 99 Michigan Law Review 958; W J Stuntz, ‘Miranda’s Mistake’ (2001) 99 Michigan Law
Review 975; G C Thomas III, ‘Separated at Birth but Siblings Nonetheless: Miranda and the Due Process
Notice Cases’ (2001) 99 Michigan Law Review 1081; C D Weisselberg, ‘In the Stationhouse after Dickerson’
(2001) 99 Michigan Law Review 1121; W S White, ‘Miranda’s Failure to Restrain Pernicious Interrogation
Practices’ (2001) 99 Michigan Law Review 1211.
178  It should be noted that, even if a corroboration, or supporting evidence, requirement were to be intro-

duced, careful consideration would need to be given to the issue of what exactly should constitute sufficient
corroborative or supporting evidence. The experience of some jurisdictions suggests that, if the require-
ment were too easy to satisfy, its protective value might be illusory. See generally A L-T Choo, ‘Confessions
and Corroboration:  A  Comparative Perspective’ [1991] Criminal Law Review 867; R Pattenden, ‘Should
Confessions Be Corroborated?’ (1991) 107 Law Quarterly Review 317; M McConville, Corroboration and
Confessions: The Impact of a Rule Requiring that No Conviction Can Be Sustained on the Basis of Confession
Evidence Alone (Royal Commission on Criminal Justice Research Study No 13, 1993).
Reform 123

confession evidence alone, or on evidence of admissions falling short of a confession.179

A more detailed study examined 305 cases in which there was confession evidence. This
revealed that:
• in 264 (86.6 per cent), there was actually corroborating evidence in the case;
• in 12 (3.9 per cent), corroborating evidence was certainly available and could therefore
have been brought to court to satisfy a corroboration requirement;
• in 10 (3.3 per cent), corroborating evidence was probably available;
• in 4 (1.3 per cent), corroborating evidence was possibly available;
• in 15 (4.9 per cent), corroborating evidence was probably unavailable.180
The Runciman Royal Commission said of these studies: ‘Taken together these studies
suggest that a supporting evidence requirement would affect only a very small percentage
of cases. But the absolute numbers would nevertheless be quite high, since over 100,000
cases a year are tried in the Crown Court and between 1 million and 1 1/2 million in the
magistrates’ courts.’ On the basis of this the Commission recommended, by a majority,
against the introduction of a supporting evidence requirement. With respect, it seems
rather flimsy reasoning to recommend against a reform designed to protect the innocent
on the basis that it would mean that a numerically large number of confession cases would
collapse, even though these cases would constitute only a very small percentage of all con-
fession cases. A Royal Commission set up in the aftermath of a spectacular miscarriage of
justice—the case of the Birmingham Six—might have been expected to have been more
sensitive to the dangers of confession evidence, and less influenced by crime control con-
siderations.181 It must not be forgotten that the cases which would collapse would include
precisely those cases which a supporting evidence requirement should frustrate.
The majority of the Commission recommended, instead, that
the judge should warn the jury that great care is needed before convicting on the basis of
the confession alone, and should explicitly refer, giving examples . . ., to the possible rea-
sons for persons confessing to crimes which they did not commit. The judge should also
draw attention to any such reason advanced by the defence and say where appropriate that
cases have been known in which persons have confessed for similar reasons to offences
which they did not commit. The judge would then direct the jury as to what evidence, if
any, had been given that was capable of supporting the confession. If there were no such
supporting evidence, the judge would so direct the jury. Where the confession had not
been tape-recorded, the warning would draw attention to this fact and to any possible
motive that the person to whom the confession was made might have for fabricating the
confession. Finally, since supporting evidence would not be an absolute requirement, the
judge would explain that if, after giving full weight to the warning, the jury were never-
theless satisfied that the confession was true, they could convict even in the absence of
supporting evidence.182

179  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 65.

180  M McConville, Corroboration and Confessions: The Impact of a Rule Requiring that No Conviction
Can Be Sustained on the Basis of Confession Evidence Alone (Royal Commission on Criminal Justice
Research Study No 13, 1993) Ch 6.
181  See generally S Greer, ‘The Right to Silence, Defence Disclosure, and Confession Evidence’ (1994) 21

Journal of Law and Society 102; A Sanders, R Young, and M Burton, Criminal Justice (4th ed 2010) 317–19.
Ashworth and Redmayne argue that ‘there are simply too many doubts about the processes which lead sus-
pects to confess for a conviction on a confession alone ever to be justified’: A Ashworth and M Redmayne,
The Criminal Process (4th ed 2010) 112.
182  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 66–7.
124
Confessions

Even this rather modest proposal was not implemented,183 and little has been heard of
it since.184

14  Summary and Conclusion

Section 76 of the Police and Criminal Evidence Act 1984 provides for the automatic exclu-
sion, at the behest of the prosecution, of evidence of a confession obtained by oppression
or in circumstances conducive to unreliability. Section 76A makes analogous provi-
sion in relation to confessions sought to be adduced in evidence by a defendant against
a co-defendant. Confession evidence not excludable under section 76 may be excluded
in the exercise of discretion. Additionally, section 77 requires warnings to the jury (or a
‘self-warning’) to be administered in limited circumstances, and the rule in R v McKenzie
provides further (limited) protection. Whether all of these, taken together, provide suf-
ficient protection to defendants against whom the prosecution seeks to adduce confession
evidence, or whether further rules—such as a corroboration requirement or more specific
exclusionary rules—should be introduced, may be debated.

Further Reading
S Easton, Silence and Confessions: The Suspect as the Source of Evidence (2014)

183  Of course, warnings about confession evidence may be given in the exercise of discretion:  cf R v

Causley [1999] Crim LR 572; Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545; R v Stone [2005] EWCA
Crim 105. See discussion in Chapter 13.
184  For a survey of possible measures for dealing with confession evidence, see T Fisher and I Rosen-Zvi,

‘The Confessional Penalty’ (2008) 30 Cardozo Law Review 871.

5
The Right to Silence and the Privilege
against Self-Incrimination

1  The Right to Silence

1.1  The Development of the Law
Prior to the Criminal Justice and Public Order Act 1994, no evidential significance
could be attached to an accused’s exercise of the right to silence at the stage of police
investigation.1 For over twenty years debate took place about whether the law should
be changed. The issue was considered by four bodies:2 the Criminal Law Revision
Committee in 1972, 3 the Royal Commission on Criminal Procedure in 1981,4 the Home
Office Working Group on the Right of Silence in 1989, 5 and the Royal Commission on
Criminal Justice in 1993.6 Their answers to the question of whether a change to the law
should be made were respectively yes, no, yes, no. It is ironic that the change of the law
by Parliament followed so closely on the heels of the Runciman Commission’s recom-
mendation that the existing law be preserved.
In support of a change in the law, it was argued by some that the old common law pro-
vided an incentive to suspects to mount ambush defences—that is, to withhold infor-
mation from the police at the stage of investigation, and then to take the prosecution
by surprise at a late stage by springing a defence based on the withheld information.
Against this it was argued that to allow an accused’s pre-trial silence to be used against
him or her at trial would indirectly place undue pressure on suspects, especially vulner-
able suspects, to speak. Not only might this be regarded as unjustifiable in principle,
but it might also result in the production of unreliable evidence. Those who are inno-
cent might in effect be pressured into incriminating themselves. As has been succinctly
explained:
the common-sense view that confronted with an accusation an individual would
normally give an explanation is problematic. Common sense may be unreliable,

1  See generally J D Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the

United Kingdom’ (2001) 5 International Journal of Evidence and Proof 145. The position at common law is
discussed briefly in R v Webber [2004] UKHL 1, [2004] 1 WLR 404 at [16]–[17].
2  See generally S Easton, The Case for the Right to Silence (2nd ed 1998) Ch 2.
3  Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmnd 4991, 1972).
4  Royal Commission on Criminal Procedure, Report (Cmnd 8092, 1981).
5  Report of the Working Group on the Right of Silence (1989).
6  Royal Commission on Criminal Justice, Report (Cm 2263, 1993).
126
The Right to Silence and the Privilege agains t Self-Incrimination

impressionistic and unsystematic. . . . Common sense may wrongly equate silence with

guilt and fail to take account of other possible factors which underlie the silence, includ-
ing fear, anxiety, confusion, the desire to protect someone else, embarrassment, outrage
and anger. All these emotions may be reflected in silence but juries may not be able reli-
ably to distinguish the ‘suspicious’ silence from the innocent silence. Silence may be a
rational response in certain circumstances but this may not be apparent to the jury or to
the trial judge.7
Part I of the Criminal Procedure and Investigations Act 1996, which imposes general
pre-trial disclosure obligations on the defence in trials on indictment, may be expected
to go some considerable way in curbing any problem of ambush defences. In any event,
a research study conducted for the Runciman Commission found little evidence of an
‘ambushing’ problem even prior to the 1996 Act:
The right to silence was exercised by 4.5 per cent of suspects who were interviewed. About
half of these were convicted. Thus, about 2 per cent of all suspects who were interviewed
exercised the right to silence and escaped conviction.
The right to silence was exercised in about 4 per cent of cases which ended with no fur-
ther action, and in about 10 per cent of cases which ended in acquittal (including cases in
which charges were dropped before trial). This indicates that any reform of the law would
have a potential impact on 2 per cent of all interviewed suspects, 4 per cent of NFA cases
and 10 per cent of acquittals.8
The Runciman Commission’s Crown Court Study revealed that all categories of respond-
ent agreed that just over 10 per cent of defendants had said nothing at all during police
questioning.
After a review of the research evidence, the Runciman Commission concluded:
The research evidence may be summarised as follows. The right of silence is exercised only
in a minority of cases. It may tend to be exercised more often in the more serious cases and
where legal advice is given. There is no evidence which shows conclusively that silence is
used disproportionately by professional criminals. Nor is there evidence to support the
belief that silence in the police station leads to improved chances of an acquittal. Most
of those who are silent in the police station either plead guilty later or are subsequently
found guilty.9
Thus, to change the law would increase the possibility of convictions of the guilty in only
a very small percentage of cases. The Commission accordingly concluded, by a majority,
‘that the possibility of an increase in the convictions of the guilty is outweighed by the risk
that the extra pressure on suspects to talk in the police station and the adverse inferences
invited if they do not may result in more convictions of the innocent’.10 Parliament, how-
ever, effected a fundamental change in the law in sections 34, 36, and 37 of the Criminal

7  S Easton, ‘Legal Advice, Common Sense and the Right to Silence’ (1998) 2 International Journal

of Evidence and Proof 109, 114–15. Cf D J Seidmann and A Stein, ‘The Right to Silence Helps the
Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege’ (2000) 114 Harvard Law Review
430. See also S Leshem, ‘The Benefits of a Right to Silence for the Innocent’ (2010) 41 RAND Journal of
Economics 398.
8  R Leng, The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate

(Royal Commission on Criminal Justice Research Study No 10, 1993)  73–4. The findings of previous
studies are also reviewed in this publication. See also S Easton, The Case for the Right to Silence (2nd ed
1998) 137–43.
9  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 53–4.
10  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 54.
The Right to Silence 127

Justice and Public Order Act 1994.11 These provisions will be considered in Sections
1.3.1–1.3.4 and subsections therein. Prior to that, however, a brief account will be given
of certain common law principles relating to pre-trial silence which stand alongside the
provisions of the 1994 Act.

1.2  Silence in the Face of Accusation

The common law principles on the evidential consequences of an accused’s silence ‘in
the face of anything said in his presence relating to the conduct in respect of which he is
charged’ are expressly preserved by the Act.12 These principles13 may be stated briefly as
follows. If the accused
• remained silent in the face of something said in his or her presence relating to the
conduct in respect of which he or she is now charged,
• in a situation where the accused and the speaker were on equal terms, and
• where, in the opinion of the jury, the accused could reasonably have been expected
to deny what was said, so that by not doing so he or she accepted its truth,
then the accused’s silence is admissible as evidence and it may be inferred from it that
the accused accepted the truth of what was said.14
In Parkes v R,15 the defendant, who was accused of murder, had been confronted by
the deceased’s mother, Mrs Graham, who said to him: ‘What she do you—why you stab
her?’ The defendant did not reply and failed to do so again when Mrs Graham repeated
the question. She then boxed him twice and seized him, saying that she would keep him
there until the police arrived. The defendant thereupon made to strike Mrs Graham with
the knife he had in his hand. The Privy Council held:
Here Mrs Graham and the defendant were speaking on even terms. Furthermore,
as the Chief Justice pointed out to the jury, the defendant’s reaction to the twice-
repeated accusation was not one of mere silence. He drew a knife and attempted to
stab Mrs Graham in order to escape when she threatened to detain him while the
police were sent for. In their Lordships’ view, the Chief Justice was perfectly enti-
tled to instruct the jury that the defendant’s reactions to the accusations including
his silence were matters which they could take into account along with other evi-
dence in deciding whether the defendant in fact committed the act with which he was
charged.16
It is important to keep in mind that the evidence of silence must have some relevance, and
also that even if relevant it may be excluded in the exercise of discretion. As the Court of
Appeal explained in R v Osborne:
Where the defence challenges the prosecution’s intention to put before the jury evi-
dence of the defendant’s reaction, or lack of reaction, to a statement made in his
presence, three questions arise:  (1)  could a jury properly directed conclude that the
defendant adopted the statement in question? If so, (2)  is that matter of sufficient

11  See generally C Hodgetts, ‘Silence of the Damned?’ (2014) 178 Criminal Law and Justice Weekly 7; A

Owusu-Bempah, ‘Silence in Suspicious Circumstances’ [2014] Criminal Law Review 126; S Easton, Silence
and Confessions: The Suspect as the Source of Evidence (2014).
12  S 34(5). 13  See generally S Easton, The Case for the Right to Silence (2nd ed 1998) 29–33.
14  R v Mitchell (1892) 17 Cox CC 503; R v Norton [1910] 2 KB 496; R v Christie [1914] AC 545; Hall v R

[1971] 1 WLR 298; Parkes v R [1976] 1 WLR 1251; R v Collins [2004] EWCA Crim 83, [2004] 1 WLR 1705.
15  [1976] 1 WLR 1251. 16  [1976] 1 WLR 1251, 1254–5.
128
The Right to Silence and the Privilege agains t Self-Incrimination

relevance to justify its introduction in evidence? If so, (3) would the admission of the
evidence have such an adverse effect on the fairness of the proceedings that the judge
ought not to admit it?17

1.3  The Criminal Justice and Public Order Act 1994

The provisions of the Criminal Justice and Public Order Act 1994 that affect the right
to silence prior to trial will now be examined. The Court of Appeal has acknowl-
edged that these provisions have ‘caused a considerable amount of thought and some
trouble’.18

1.3.1  Section 34
‘Until the enactment of section 34, judges and juries were severely constrained by a
common law rule applicable in England and Wales against drawing an adverse inference
against a defendant if he failed to mention during police questioning a matter on which he
later relied in his defence.’19 It is accepted that ‘the purpose of s 34 is to encourage speedy
disclosure of a genuine defence and to permit adverse inferences to be drawn where a
defence has been fabricated later’.20 Acknowledged to be ‘a notorious minefield’21 and ‘a
very difficult area’,22 section 34 provides:
(1) Where, in any proceedings against a person for an offence, evidence is given that the
accused—
(a) at any time before he was charged with the offence, on being questioned under
caution by a constable trying to discover whether or by whom the offence had
been committed, failed to mention any fact relied on in his defence in those
proceedings; or
(b) on being charged with the offence or officially informed that he might be pros-
ecuted for it, failed to mention any such fact; or
(c) at any time after being charged with the offence, on being questioned under sec-
tion 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to
mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably
have been expected to mention when so questioned, charged or informed, as the case may
be, subsection (2) below applies.
(2) Where this subsection applies . . .
(d) the court or jury, in determining whether the accused is guilty of the offence
charged,
may draw such inferences from the failure as appear proper.
(2A) W
here the accused was at an authorised place of detention at the time of the
failure, subsections (1) and (2) above do not apply if he had not been allowed an
opportunity to consult a solicitor prior to being questioned, charged or informed
as mentioned in subsection (1) above.

17  [2005] EWCA Crim 3082 at [19].    18  R v Adinga [2003] EWCA Crim 3201 at [27].
19  R v Webber [2004] UKHL 1, [2004] 1 WLR 404 at [16].
20  R v Lowe [2003] EWCA Crim 3182 at [22]. 21  R v B [2003] EWCA Crim 3080 at [20].
22  R v Bresa [2005] EWCA Crim 1414 at [51].
The Right to Silence 129

(3) Subject to any directions by the court, evidence tending to establish the failure may
be given before or after evidence tending to establish the fact which the accused is
alleged to have failed to mention.
(4) This section applies in relation to questioning by persons (other than constables)
charged with the duty of investigating offences or charging offenders as it applies in
relation to questioning by constables; and in subsection (1) above ‘officially informed’
means informed by a constable or any such person.

1.3.1.1 ‘Offence’
‘“Offence”, in s 34’, the Court of Appeal has clarified, ‘means “crime” rather than
“conduct”’:
The date alleged in an indictment is normally not an essential part of the charge: the jury
may convict on a count even if they are not satisfied that the offence took place on that
date. An error by the interviewing police officer or other discrepancy as to the date of an
offence will not necessarily preclude the application of s 34.23

1.3.1.2  ‘On Being Questioned under Caution’

There must have been questioning24 under caution. The terms of the caution are prescribed
by paragraph 10.5 of Code C of the Codes of Practice issued pursuant to the Police and
Criminal Evidence Act 1984:
You do not have to say anything. But it may harm your defence if you do not mention
when questioned something which you later rely on in Court. Anything you do say may
be given in evidence.
This is rather more complex than the old caution: ‘You do not have to say anything unless
you wish to do so, but what you say may be given in evidence.’ In the light of evidence
that even the old and simpler caution was misunderstood by many suspects,25 the likeli-
hood of the ‘new’ one being properly understood may well be questionable. A research
study has found: ‘Police officers and legal advisers both expressed doubts about the extent
to which suspects understand the content and implications of this statement. . . . even if
police officers explained the caution in lay terms, they expressed a degree of scepticism
about whether suspects fully comprehended it.’26

1.3.1.3  ‘Failed to Mention’

The issue of what constitutes a failure to mention received detailed consideration in
R v Knight.27 When the police sought to interview Knight, a prepared statement was read
out to them by his solicitor at the beginning of the interview process. This statement,
which was eventually admitted in evidence and read by the judge to the jury as part of

23  R v M (I) [2011] EWCA Crim 868, [2012] 1 Cr App R 3 at [25], [26].

24  See R v Johnson [2005] EWCA Crim 971 at [27]: ‘we do not feel able to regard what occurred as coming
within the ambit of the phrase “on being questioned”. No question was, in fact, put. What occurred was a
precursor to that stage of the process.’
25  M Zander, Cases and Materials on the English Legal System (10th ed 2007) 170.
26  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 27. See also J Lindsay, ‘We Caution You—This Is
English but You Might not Understand It’, The Times, 25 Apr 2006, Law, 4.
27  [2003] EWCA Crim 1977, [2004] 1 WLR 340. See generally A L-T Choo, ‘Prepared Statements, Legal

Advice and the Right to Silence:  R v Knight’ (2004) 8 International Journal of Evidence and Proof 62;
A Keogh, ‘The Right to Silence—Revisited Again’ (2003) 153 New Law Journal 1352.
130
The Right to Silence and the Privilege agains t Self-Incrimination

the summing-up, provided a narrative account that was wholly in line with Knight’s later
testimony before the jury. He declined to answer any of the questions that the police asked
him. The Court of Appeal asked itself the following question: ‘Is the distinct purpose of
s 34(1)(a) not only to encourage a suspect to give his full account to the police in response
to the accusation made against him, but also (on pain of a distinct inference being later
drawn if he does not do so) to have that account subjected to testing questions—in effect
cross-examination—by the police in interview?’28
The Court held29 that this question should be answered in the negative: ‘the aim of
s 34(1)(a) does not distinctly include police cross-examination of a suspect upon his
account over and above the disclosure of that account’. The Court pointed out that the
relevant failure is described by Parliament as a failure to mention facts rather than a fail-
ure to answer questions. ‘A requirement to submit to police cross-examination (so long as
the questions are proper), or at any rate an encouragement to do so on pain of later adverse
inferences being drawn, is a significantly greater intrusion into a suspect’s general right of
silence than is a requirement, or encouragement, upon the suspect to disclose his factual
defence.’ Such an intrusion could, the Court thought, be justified only if it were expressed
much more clearly in the legislation.
Furthermore, where a full account of the defence has been provided in a prepared state-
ment, it is not obvious what inference could be drawn from the refusal to respond to
police questioning:
It cannot be recent fabrication of his defence: he has stated his defence in full before or at
the beginning of the interview. It could only be that the defence, although thus revealed in
full, ought not to be believed, or at least is of doubtful veracity, because it was not tested by
police questioning. But it is very difficult to see how such a distinct inference could prop-
erly be drawn in the milieu of the trial process. If the defendant gives evidence at his trial,
plainly the jury will assess the quality of that evidence not least in light of the defendant’s
answers in cross-examination. If (having given in full his account at the earliest stage by
way of a pre-prepared statement) he acquits himself well in the witness box in the eyes of
the jury, it would surely be neither realistic nor fair for them then to draw back from that
conclusion in light of the fact that he did not subject himself to police cross-examination
in interview. If on the other hand the defendant declines to give evidence at his trial, then
adverse inferences may be drawn against him where appropriate under s 35. In that situa-
tion there can surely be no sensible room for further inferences under s 34.30
In this case, as Knight had disclosed his full defence to the police by way of his prepared
statement, ‘there was in our judgment no legitimate room for an adverse inference to be
drawn against him under s 34. The learned judge was therefore in error in directing the
jury that such an inference was available.’31 On this basis, Knight’s appeal was allowed
and his conviction quashed.
The Court of Appeal was careful, however, to issue the following caution:
The making of a pre-prepared statement is not of itself an inevitable antidote to later
adverse inferences. The pre-prepared statement may be incomplete in comparison with
the defendant’s later account at trial, or it may be, to whatever degree, inconsistent with
that account. One may envisage many situations in which a pre-prepared statement in
some form has been put forward, but yet there is a proper case for an adverse inference

28  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [9]‌.

29  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [11].
30  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [12] (italics in original). S 35 is considered in Chapter 13.
31  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [15].
The Right to Silence 131

arising out of the suspect’s failure ‘on being questioned under caution . . . to mention any
fact relied on in his defence’. We wish to make it crystal clear that of itself the making
of a pre-prepared statement gives no automatic immunity against adverse inferences
under s 34.
Nor does it follow that, in a case in which it is not suggested that any adverse inference
should be drawn under s 34, the prosecution can be required to adduce as part of their
evidence a pre-prepared wholly self-serving statement.32
In a subsequent case, R v Turner, the Court of Appeal observed:
This court notes a growing practice, no doubt on advice, to submit a pre-prepared state-
ment and decline to answer any questions. This, in our view, may prove to be a dangerous
course for an innocent person who subsequently discovers at the trial that something
significant has been omitted. No such problems would arise following an interview where
the suspect gives appropriate answers to the questions.33
However, even where discrepancies exist between a prepared statement and the defend-
ant’s evidence at trial, it may not be appropriate for section 34 to be invoked:
Where there are differences between what a defendant says in a pre-prepared statement
and the evidence he gives at the trial it may be that the jury would be better directed to
consider a difference as constituting a previous lie rather than as the foundation for a s 34
inference. It will depend on the precise circumstances.34
In sum, any uncertainty surrounding prepared statements that provide a full35 account of
the defence later relied on has now been resolved in favour of the defendant. The Court of
Appeal has taken a pragmatic approach to the interpretation of section 34 on this point,
paying due attention to the rights of the defence and clearly acknowledging that the right
to silence is not to be interfered with lightly.

1.3.1.4  What Is a ‘Fact’?

What constitutes a ‘fact’ for the purposes of section 34 has received considerable judicial
attention, the House of Lords stating that
‘fact’ should be given a broad and not a narrow or pedantic meaning. The word covers any
alleged fact which is in issue and is put forward as part of the defence case: if the defend-
ant advances at trial any pure fact or exculpatory explanation or account which, if it were
true, he could reasonably have been expected to advance earlier, section 34 is potentially
applicable.36
Consistently with this, the Court of Appeal takes a pragmatic approach on the basis of its
perception of the purpose of the provision:
it seems to us necessary to approach the meaning to be attributed to ‘any fact’ having
regard to the apparent purpose of the statute and, in particular, the context and stage
of proceedings with which s 34(1)(a) is concerned, that is to say the questioning of a

32  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [13]–[14] (italics in original).
33  [2003] EWCA Crim 3108, [2004] 1 All ER 1025 at [25].
34  [2003] EWCA Crim 3108, [2004] 1 All ER 1025 at [35]. Evidence of a defendant’s previous lie is con-

sidered in Chapter 13.
35  ‘It is of course of paramount importance that the prepared statement covers all of the points to be

relied upon in the accused’s defence, as he can reasonably at that stage be expected to mention’: A Keogh,
‘The Right to Silence—Revisited Again’ (2003) 153 New Law Journal 1352, 1353.
36  R v Webber [2004] UKHL 1, [2004] 1 WLR 404 at [33].
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The Right to Silence and the Privilege agains t Self-Incrimination

suspect at a stage when the facts available to the prosecution without the benefit of any
explanation of the defendant give rise to a suspicion or inference of his involvement in
the crime under investigation, and the questioning is being directed to establishing
whether such suspicion or inference is well founded in fact. The facts relevant to estab-
lishing whether or not the defendant is guilty of the crime in respect of which he is being
interrogated go far wider than the simple matter of what might have been observed to
happen on a particular occasion and frequently involve what reasons or explanations
the defendant gives for his involvement in the particular event observed which, if true,
would absolve him from the suspicion of criminal intent or involvement which might
otherwise arise. 37
The word ‘fact’ is not therefore to be construed as referring solely to specific acts: ‘the
words “any fact” do not fall to be read only in the narrow sense of an actual deed or thing
done’.38

1.3.1.5  Reliance on a Fact

The House of Lords has held authoritatively that
a defendant relies on a fact or matter in his defence not only when he gives or adduces
evidence of it but also when counsel, acting on his instructions, puts a specific and posi-
tive case to prosecution witnesses, as opposed to asking questions intended to probe or
test the prosecution case. This is so whether or not the prosecution witness accepts the
suggestion put. Two considerations in particular lead us to that conclusion.
(1) While it is of course true that questions put by counsel are not evidence and do not
become so unless accepted by a witness, the effect of specific, positive suggestions
put by counsel on behalf of a defendant is to plant in the jury’s mind the defendant’s
version of events. This may be so even if the witness rejects the suggestion, since the
jury may for whatever reason distrust the witness’s evidence . . .
(2) Since subsection (2)(c) of section 34 permits the court to draw proper inferences
when determining whether there is a case to answer, the section may apply at a
stage of the trial when the defendant has had no opportunity to give or adduce
evidence, and when it will not be known (perhaps not even decided) whether the
defendant will give or call evidence or not. But the court is likely to know, from
questions put to prosecution witnesses, what (if any) positive case the defendant
advances. It would be surprising if subsection (2)(c) were intended to apply only
when, unusually, specific suggestions put to a prosecution witness are accepted by
the witness.
Had subsection (1) been intended to apply only where evidence properly so called is given
or adduced or elicited by a defendant, we would expect the draftsman to have made that
clear by using the language of evidence. As it is, the words ‘relied on in his defence’ suggest
a wider import.39

37  R v Milford [2001] Crim LR 330; transcript at [32] (italics in original), cited approvingly in R v Chenia

[2002] EWCA Crim 2345, [2003] 2 Cr App R 6 at [26].

38  R v Milford [2001] Crim LR 330; transcript at [32], cited approvingly in R v Chenia [2002] EWCA Crim

2345, [2003] 2 Cr App R 6 at [26].

39  R v Webber [2004] UKHL 1, [2004] 1 WLR 404 at [34]–[35]. See generally S Nash, ‘Drawing Inferences

from Positive Suggestions Put to Witnesses: R v Webber’ (2005) 9 International Journal of Evidence and
Proof 50. See also T v DPP [2007] EWHC 1793 (Admin), (2007) 171 JP 605 at [20]: ‘The justices’ amplified
reasons seem . . . to concentrate on the failure to answer questions at interview. There is no analysis of the
The Right to Silence 133

1.3.1.6  Was it ‘a fact which in the circumstances existing at the time the
accused could reasonably have been expected to mention’?
The fact not mentioned must have been one which, in the circumstances, the defendant
could reasonably have been expected to mention.40

Legal Advice to Remain Silent

An issue that has proved troubling for the courts is the extent to which adverse infer-
ences may be drawn where the suspect acted on legal advice in failing to mention a fact in
interview.41 In Condron v UK, discussed in Section 1.3.1.9, the European Court of Human
Rights remarked that ‘the very fact that an accused is advised by his lawyer to maintain his
silence must . . . be given appropriate weight by the domestic court’.42 Following Condron
v UK, the Court of Appeal in R v Betts and Hall43 took the view that, to satisfy Article 6,
section 34 should be interpreted as permitting adverse inferences only where the jury
were satisfied that the suspect had no innocent explanation to offer. The approach advo-
cated in Betts and Hall was therefore that adverse inferences could not be drawn from a
no-comment interview if the jury accepted the defendant’s claim that the ‘silence’ was
attributable to legal advice to give a no-comment interview, rather than to the defendant’s
having no adequate answer. The issue for the jury was whether the defendant’s claim was
genuine. While the reasons for the legal advice were not directly relevant, the defence
might well have to point to such reasons in attempting to establish the genuineness of
the claim that he or she remained silent because of the legal advice. As will be discussed
later in Section 1.3.1.6, Betts and Hall has since been referred to in the judgment of the
European Court in Beckles v UK,44 where the Court found a violation of Article 6 on the
basis that the judge had failed to give an appropriate direction to the jury on the drawing
of adverse inferences under section 34.
The reasoning in Betts and Hall was not, however, adopted in R v Howell.45 The Court of
Appeal in Howell held, in effect, that genuine reliance on legal advice to remain silent was
not of itself sufficient to prevent the drawing of adverse inferences. The Court considered
that the effect of provisions like section 34 is that
[the] benign continuum from interview to trial, the public interest that inheres in rea-
sonable disclosure by a suspected person of what he has to say when faced with a set of

facts upon which T relied at trial which he could reasonably have been expected to mention in order for the
adverse inference to be drawn.’
40  See generally R Leng, ‘Silence Pre-Trial, Reasonable Expectations and the Normative Distortion of

Fact-Finding’ (2001) 5 International Journal of Evidence and Proof 240.

41  See generally S Cooper, ‘Legal Advice and Pre-Trial Silence—Unreasonable Developments’ (2006)

10 International Journal of Evidence and Proof 60; H Quirk, ‘Twenty Years On, the Right of Silence and
Legal Advice: The Spiralling Costs of an Unfair Exchange’ (2013) 64 Northern Ireland Legal Quarterly 465;
D Wolchover, ‘Serving Silent Suspects—Part 1’ (2011) 175 Criminal Law and Justice Weekly 71; D Wolchover,
‘Serving and Saving Silent Suspects—Part 2’ (2011) 175 Criminal Law and Justice Weekly 86; D Wolchover,
‘Serving and Saving Silent Suspects—Part 3’ (2011) 175 Criminal Law and Justice Weekly 104; D Wolchover,
‘Silent Triumph of the Coach and Horses’ [2005] 9 Archbold News 5.
42  (2000) 31 EHRR 1 at [60] (italics added).
43  [2001] EWCA Crim 224, [2001] 2 Cr App R 16. See generally D Wolchover, ‘An Obituary for Inferences

on Police Station Silence’ [2002] 6 Archbold News 3.

44  (2002) 36 EHRR 13.
45  [2003] EWCA Crim 1, [2005] 1 Cr App R 1. For other discussions of this case see R Brown, ‘The Benign

Continuum?’ [2003] 1 Archbold News 7; A L-T Choo and A F Jennings, ‘Silence on Legal Advice Revisited:
R v Howell’ (2003) 7 International Journal of Evidence and Proof 185; F Fitzgibbon, ‘Life in Crime’ (2003)
147 Solicitors’ Journal 287.
134
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facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains
silent on legal advice he may systematically avoid adverse comment at his trial. And it may
encourage solicitors to advise silence for other than good objective reasons. We do not con-
sider, pace the reasoning in Betts & Hall, that once it is shown that the advice (of whatever
quality) has genuinely been relied on as the reason for the suspect’s remaining silent, adverse
comment is thereby disallowed. The premise of such a position is that in such circumstances
it is in principle not reasonable to expect the suspect to mention the facts in question. We
do not believe that is so. What is reasonable depends on all the circumstances. . . . The kind
of circumstance which may most likely justify silence will be such matters as the suspect’s
condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so
forth—of course we are not laying down an authoritative list), or his inability genuinely
to recollect events without reference to documents which are not to hand, or communica-
tion with other persons who may be able to assist his recollection. 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 by the suspect to the
police. Solicitors bearing the important responsibility of giving advice to suspects at police
stations must always have that in mind.46
The Court in Howell considered that its reasoning was not inconsistent with the judgment
of the European Court of Human Rights in Beckles v UK.47 This, however, overlooks the
fact that the European Court in Beckles v UK referred expressly to Betts and Hall in the
following terms:
In the Court’s opinion, the jury should have been . . . directed that if it was satisfied that the
applicant’s silence at the police interview could not sensibly be attributed to his having no
answer or none that would stand up to police questioning it should not draw an adverse infer-
ence. It notes in this connection that the case law of the domestic courts in this area has
steadily evolved and that the Court of Appeal in R v Betts and Hall has recently noted the
importance of giving due weight to an accused’s reliance on legal advice to explain his failure
to respond to police questioning.48
This constitutes a clear expression of approval of the post-Condron v UK evolution of domes-
tic case law as encapsulated in the decision in Betts and Hall. Thus, the attempt in Howell to
undermine the reasoning in Betts and Hall flies in the face of the judgment of the European
Court in Beckles v UK. While it is true that all that is required by Condron v UK is that ‘appro-
priate weight’ be accorded to the fact that silence was advised, what is significant is the man-
ner in which this requirement of ‘appropriate weight’ has been subsequently interpreted. The
quotation from Beckles v UK demonstrates that the European Court effectively endorsed the
Betts and Hall view that genuine reliance on legal advice to remain silent, regardless of the
quality of that advice, must be sufficient of itself to prevent the drawing of adverse inferences.
The merit of consistency aside, such an approach would be clearly justifiable from the view-
point of principle: it would undermine the fundamental importance accorded by the law to
the right to legal advice49 if a suspect who was advised to remain silent was required in effect
to make his or her own assessment of the quality of that advice.
The decision of the Court of Appeal in R v Knight,50 examined earlier, in Section 1.3.1.3
in the context of prepared statements, also addressed the question of silence on legal

46  [2003] EWCA Crim 1, [2005] 1 Cr App R 1 at [24] (italics in original).

47  (2003) 36 EHRR 13. 48  (2003) 36 EHRR 13 at [64].
49  In fact, as we have seen, s 34, as amended by s 58 of the Youth Justice and Criminal Evidence Act 1999,

prohibits the drawing of inferences unless the accused was granted access to legal advice.
50  [2003] EWCA Crim 1977, [2004] 1 WLR 340.
The Right to Silence 135

advice. While emphasizing that any comments on this question would be obiter, given
that the resolution of the appeal turned on the question of prepared statements, the Court
thought that ‘in the hope that it may be of some assistance we shall express our view
about it’.51 The Court’s view was that, if there was any conflict between Betts and Hall and
Howell, then Betts and Hall should be disavowed and Howell taken to represent a changed
approach: ‘A shift of view upon such a matter is not to be ruled out of court on grounds of
stare decisis. The rules of precedent, not least in the field of our criminal law, by no means
require so rigid an approach.’52 Thus, in the view of the Court in Knight, proven reliance
on legal advice to remain silent will not, in the absence of a consideration of the quality
of that advice, immunize the suspect from adverse inferences under section 34. It follows
from this that where the advice is considered to have been of doubtful quality then other
factors will need to be relied upon to prevent the drawing of adverse inferences:
we consider that it will perhaps be useful if we make it clear that we do not intend to
exclude altogether the possibility of a case arising in which, although the solicitor has
given no reasons or bad reasons to stay silent, still it would be wrong to draw a s 34 infer-
ence against the defendant: he may in the particular circumstances of the case be dis-
tinctly weak or vulnerable, so that it would not be reasonable to expect him to give an
account to the police. It would be a matter for the jury.53
It is disappointing that in Knight the approach in Howell was that which found favour. On
the very day that the decision in Knight was handed down, however, the Court of Appeal,
with a differently constituted membership, handed down its decision in R v Robinson.54
Citing Betts and Hall, the Court stated in Robinson:
If it is a plausible explanation that the reason for not mentioning facts is that the particular
appellant acted on the advice of his solicitor and not because he had no, or no satisfac-
tory, answer to give, then no inference can be drawn. This does not give a licence to a
guilty person to shield behind the advice of his solicitor. The adequacy of the explanation
advanced may well be relevant as to whether or not the advice was truly the reason for not
mentioning the facts. A person, who is anxious not to answer questions because he has
no, or no adequate, explanation to offer, gains no protection from his solicitor’s advice
because that advice is no more than a convenient way of disguising his true motivation for
not mentioning facts.55
It would appear, however, that the approach in Howell and Knight has now prevailed,
and that there is no longer any prospect for the time being of the conflict in the case law
being resolved in favour of the approach taken in Betts and Hall. The Court of Appeal
subsequently confirmed, in R v Hoare56 and R v Beckles,57 that reasonable reliance on legal
advice to remain silent was necessary to prevent adverse inferences from being drawn.
The Court stated in R v Beckles:
in a case where a solicitor’s advice is relied upon by the defendant, the ultimate ques-
tion for the jury remains under section 34 whether the facts relied on at the trial were

51  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [16].

52  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [17].
53  [2003] EWCA Crim 1977, [2004] 1 WLR 340 at [18]. 54  [2003] EWCA Crim 2219.
55  [2003] EWCA Crim 2219 at [55].
56  [2004] EWCA Crim 784, [2005] 1 Cr App R 22. See generally D Emanuel and A Jennings, ‘Legal Advice

to Remain Silent’ [2004] 5 Archbold News 6.

57  [2004] EWCA Crim 2766, [2005] 1 All ER 705. See generally B Malik, ‘Silence on Legal Advice: Clarity

But Not Justice?: R v Beckles’ (2005) 9 International Journal of Evidence and Proof 211.
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The Right to Silence and the Privilege agains t Self-Incrimination

facts which the defendant could reasonably have been expected to mention at interview.
If they were not, that is the end of the matter. If the jury consider that the defendant
genuinely relied on the advice, that is not necessarily the end of the matter. It may still
not have been reasonable for him to rely on the advice, or the advice may not have been
the true explanation for his silence. . . . If . . . it is possible to say that the defendant genu-
inely acted upon the advice, the fact that he did so because it suited his purpose may
mean he was not acting reasonably in not mentioning the facts. His reasonableness in
not mentioning the facts remains to be determined by the jury. If they conclude he was
acting unreasonably they can draw an adverse inference from the failure to mention
the facts. 58
The existence of good reason for legal advice to remain silent would support a defendant’s
argument that his or her reliance on the advice was reasonable. In any event, as already
noted in this section, even if it were the case that genuine reliance on legal advice would
be sufficient to prevent adverse inferences, the existence of good reason for the advice may
provide evidence of genuine reliance. By revealing the reason for the advice, however, the
accused may well be waiving legal professional privilege.59 The consequence of waiver is
the ‘opening up [of] questions which properly go to whether such reason can be the true
explanation for [the accused’s] silence . . . That will ordinarily include questions relating
to recent fabrication, and thus to what he told his solicitor of the facts now relied upon at
trial’.60 The Court of Appeal has, however, emphasized that ‘the circumstances in which
[privilege] was waived and how that waiver is sought to be deployed by the Crown [may
be] important factors which the judge must consider . . . A judge must not assume that the
Crown is entitled to take advantage of the waiver in every case, where, as a matter of law, it
has been waived. He must exercise independent judgment as to whether it is fair to permit
the prosecution to exploit that waiver.’61
The possible consequences of waiver would seem to place the accused in an unenviable
‘catch-22’ situation. To prevent adverse inferences from being drawn it may be necessary
to provide reasons for the advice. Yet this may be interpreted as a waiver of legal pro-
fessional privilege, so that the accused, or the legal adviser, may be cross-examined on
whether there were additional, tactical reasons for the advice.62 This state of affairs was
not regarded as problematic by the European Court in Condron v UK:
the fact that the applicants were subjected to cross-examination on the content of
their solicitor’s advice cannot be said to raise an issue of fairness under Article 6 of the
Convention. They were under no compulsion to disclose the advice given, other than the
indirect compulsion to avoid the reason for their silence remaining at the level of a bare

58  [2004] EWCA Crim 2766, [2005] 1 All ER 705 at [46]. See also R v Karapetyan [2013] EWCA Crim 74.
59  ‘A defendant who adduces evidence that he was advised by his lawyer not to answer questions but goes
no further than that does not thereby waive privilege. . . . But a defendant who adduces evidence of the con-
tent of, or reasons for, such advice, beyond the mere fact of it, does waive privilege’: R v Seaton [2010] EWCA
Crim 1980, [2011] 1 WLR 623 at [43]. See also R v Hall-Chung [2007] EWCA Crim 3429. See generally A
Edwards, ‘Principles of Privilege’, Law Society’s Gazette, 14 Apr 2011 (online); P Roche and J Dick, ‘Section
34 and Waiver of Privilege’ [2008] 3 Archbold News 7.
60  R v Seaton [2010] EWCA Crim 1980, [2011] 1 WLR 623 at [43]. See generally A Edwards, ‘Principles of

Privilege’, Law Society’s Gazette, 14 Apr 2011 (online).

61  R v Hall-Chung [2007] EWCA Crim 3429 at [19].
62  Of course, it is entirely possible that in practice juries will be sympathetic to defendants who remained

silent on the advice of their solicitors. As Pattenden has written (R Pattenden, ‘Silence: Lord Taylor’s Legacy’
(1998) 2 International Journal of Evidence and Proof 141, 152): ‘In practice we may find that jurors are less
critical than judges of defendants who remained silent on their solicitor’s advice. Jurors may think that if
they were arrested they would not try to second-guess their lawyer.’
The Right to Silence 137

explanation. The applicants chose to make the content of their solicitor’s advice a live issue
as part of their defence. For that reason they cannot complain that the scheme of section
34 of the 1994 Act is such as to override the confidentiality of their discussions with their
solicitor.63

Other Relevant Factors

The Court of Appeal has made some general observations on the determination of whether
the failure to mention a fact was one
which in the circumstances existing at the time the accused could reasonably have been
expected to mention . . . The time referred to is the time of questioning, and account
must be taken of all the relevant circumstances existing at that time. The courts should
not construe the expression ‘in the circumstances’ restrictively: matters such as time
of day, the defendant’s age, experience, mental capacity, state of health, sobriety,
tiredness, knowledge, personality and legal advice are all part of the relevant circum-
stances; and those are only examples of things which may be relevant. When refer-
ence is made to ‘the accused’ attention is directed not to some hypothetical, reasonable
accused of ordinary phlegm and fortitude but to the actual accused with such quali-
ties, apprehensions, knowledge and advice as he is shown to have had at the time. It
is for the jury to decide whether the fact (or facts) which the defendant has relied on
in his defence in the criminal trial, but which he had not mentioned when questioned
under caution before charge by the constable investigating the alleged offence for which
the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as
they actually existed the actual defendant could reasonably have been expected to
mention.
Like so many other questions in criminal trials this is a question to be resolved by
the jury in the exercise of their collective common-sense, experience and understand-
ing of human nature. Sometimes they may conclude that it was reasonable for the
defendant to have held his peace for a host of reasons, such as that he was tired, ill,
frightened, drunk, drugged, unable to understand what was going on, suspicious of
the police, afraid that his answer would not be fairly recorded, worried at committing
himself without legal advice, acting on legal advice, or some other reason accepted by
the jury.
In other cases the jury may conclude, after hearing all that the defendant and his wit-
nesses may have to say about the reasons for failing to mention the fact or facts in issue,
that he could reasonably have been expected to do so. This is an issue on which the judge
may, and usually should, give appropriate directions. But he should ordinarily leave the
issue to the jury to decide. Only rarely would it be right for the judge to direct the jury that
they should, or should not, draw the appropriate inference.64
The examples of relevant circumstances given by the Court of Appeal are very important
in establishing that the process of drawing an inference from the defendant’s silence is
a subjective exercise which requires the court to consider closely what meaning can be
attributed to the silence of that particular individual in the light of all of his or her rel-
evant characteristics. Empirical research has shown that the following three factors are
by far the most commonly cited by solicitors as reasons for advising a client to exercise
the right to remain silent: insufficient disclosure by the police, insufficient prosecution
disclosure, and the physical or mental condition of the client.65

63  (2000) 31 EHRR 1 at [60]. 64  R v Argent [1997] 2 Cr App R 27, 33.

65  J Williams, ‘Inferences from Silence’ (1997) 141 Solicitors’ Journal 566, 566.
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The Right to Silence and the Privilege agains t Self-Incrimination

1.3.1.7  Directions to the Jury and Inferences which May Be Drawn

The Court of Appeal has emphasized that what inferences it would appear proper to draw
from silence is ultimately a question for the jury:
Subsection (2)(d) empowers a jury in prescribed circumstances to draw such inferences
as appear proper. That must mean as appear proper to a jury because the jury is the tri-
bunal of fact and the drawing of appropriate inferences from the facts is the task of the
tribunal of fact. The trial judge is of course responsible for the overall fairness of the trial
and it is open to him to give the jury guidance on the approach to the evidence. There will
undoubtedly be circumstances in which a judge should warn a jury against drawing infer-
ences, but the judge must always bear in mind that the jury is the tribunal of fact and that
Parliament in its wisdom has seen fit to enact this section.66
‘Ordinarily, where the Crown is proposing to invite the jury to draw an inference under
s 34 the alleged discrepancy [between what was said in interview and the facts relied
upon at trial] should be ventilated in cross-examination so that the defendant has an
opportunity to deal with it.’67
The Court of Appeal has clarified the essential ingredients of a direction to the jury as
follows:
(i) The facts which the accused failed to mention but which are relied on in his defence
should be identified . . .
(ii) The inferences (or conclusions . . .) which it is suggested might be drawn from
failure to mention such facts should be identified, to the extent that they may go
beyond the standard inference of late fabrication . . .
(iii) The jury should be told that, if an inference is drawn, they should not convict
‘wholly or mainly on the strength of it’ . . . The first of those alternatives (‘wholly’)
is a clear way of putting the need for the prosecution to be able to prove a case to
answer, otherwise than by means of any inference drawn. The second alternative
(‘or mainly’) buttresses that need.
(iv) The jury should be told that an inference should be drawn ‘only if you think it is a
fair and proper conclusion’ . . .
(v) An inference . . . should only be drawn if there is no other sensible explanation for
the failure. That is analogous to the essence of a direction on lies.
(vi) An inference should only be drawn if, apart from the defendant’s failure to men-
tion facts later relied on in his defence, the prosecution case is ‘so strong that it
clearly calls for an answer by him’ . . . This is a striking way to put the need . . . for a
case to answer. . . .
(vii) The jury should be reminded of the evidence on the basis of which the jury are invited
not to draw any conclusion from the defendant’s silence . . . This goes with point (iv)
above, because it is only after a jury has considered the defendant’s explanation for
his failure that they can conclude that there is no other sensible explanation for it.
(viii) A special direction should be given where the explanation for silence of which
evidence has been given is that the defendant was advised by his solicitor to
remain silent . . .68

66  R v Argent [1997] 2 Cr App R 27, 32.

67  R v Turner [2003] EWCA Crim 3108, [2004] 1 All ER 1025 at [33].
68  R v Petkar [2003] EWCA Crim 2668, [2004] 1 Cr App R 22 at [51].
The Right to Silence 139

The Court of Appeal has emphasized that, ‘before drawing an adverse conclusion or
inference . . . for . . . failure to mention a matter in interview, the jury must be sure that the
prosecution’s case was so strong that it clearly called for an answer’.69 ‘In circumstances
where there is no evidence [contradicting the fact not mentioned], or the evidence is
weak, it is the more important that the limited function of an omission to state some-
thing in interview is spelt out to the jury.’70 However, ‘where it is clear that there is a com-
pelling case for a defendant to answer and so the jury must have been of that view[,]‌ . . . a
failure to direct the jury that they should only take an omission to rely on something in
interview as support for the prosecution case if they are satisfied that there is a case to
answer . . . is unlikely to render a conviction unsafe’.71
Conversely, ‘where a judge has concluded that the requirements of section 34 of the
Criminal Justice and Public Order Act 1994 [are] not satisfied, so that he [cannot] prop-
erly leave to the jury the possibility of drawing adverse inferences from the defendant’s
silence in interview, then he [is] positively obliged to direct the jury that they must not in
any way hold the defendant’s failure to answer questions against him’.72 This is known as
a ‘McGarry73 direction’.
An interesting question is whether it should be permissible for a court or jury to draw an
inference under section 34 where, if that inference were to be drawn, guilt would, without
more, be established. Suppose that A and B are found in a small flat containing drugs. The
evidence is such that one or the other must have been the possessor of the drugs. A remains
silent at interview. B speaks at interview and incriminates A. At trial, A’s defence is that B
possessed the drugs, and A asserts that the explanation for his silence at interview was an
unwillingness to incriminate B. In these circumstances, if the jury were permitted to draw
an inference from A’s silence in interview that his story in court was not to be believed, the
jury would effectively conclude his guilt (that is, if the jury disbelieved his story that B was
the drug possessor, this would imply that A himself was the guilty possessor). It is arguable
that this reasoning (inferring guilt from silence) is implicitly prohibited by section 38(3),
which provides that a person is not to be convicted of an offence solely on the basis of an
inference drawn from silence. While this argument was employed successfully to resist
the drawing of inferences in some early cases,74 the current approach of the courts is that
inferences may be drawn in these circumstances.75 This shift in approach has been justi-
fied on the basis of ‘the clear statutory intention of s 34, manifest from its wording’.76 It has
been vaguely noted that the earlier approach would rarely be appropriate, being likely to be
appropriate only ‘in the simplest and most straightforward of cases’.77
As a matter of good practice, ‘judges should discuss with counsel the question of
whether a s 34 direction is appropriate and, if it is, what form it should take’.78

69  R v Parchment [2003] EWCA Crim 2428 at [12], approving Condron v UK (2000) 31 EHRR 1; R v Gill

[2001] 1 Cr App R 11; R v Francom [2001] 1 Cr App R 17; R v Bromfield [2002] EWCA Crim 195; R v Chenia
[2002] EWCA Crim 2345, [2003] 2 Cr App R 6. See also R v T [2013] EWCA Crim 1488.
70  R v Parchment [2003] EWCA Crim 2428 at [14].
71  R v Parchment [2003] EWCA Crim 2428 at [18].
72  R v Dow [2003] EWCA Crim 3621 at [21]. See also R v Rahman [2003] EWCA Crim 3554.
73  R v McGarry [1999] 1 Cr App R 377.
74  R v Mountford [1999] Crim LR 575; R v Gill [2001] 1 Cr App R 11.
75  R v Milford [2001] Crim LR 330; R v Gowland-Wynn [2002] 1 Cr App R 41; R v Chenia [2002] EWCA

Crim 2345, [2003] 2 Cr App R 6.

76  R v Milford [2001] Crim LR 330; transcript at [35], cited approvingly in R v Chenia [2002] EWCA Crim

2345, [2003] 2 Cr App R 6 at [34].

77  R v Chenia [2002] EWCA Crim 2345, [2003] 2 Cr App R 6 at [35].
78  R v James [2014] EWCA Crim 1215 at [23].
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The Right to Silence and the Privilege agains t Self-Incrimination

1.3.1.8  Evidence of No-Comment Interviews

In R v Griffin,79 the Court of Appeal considered the principle that the prosecution should
limit evidence about a police interview to the fact that the defendant had remained silent,
and that it is inappropriate to spend time going through the questions asked. The Court
of Appeal considered that this principle did not, however, constitute a binding rule the
non-compliance with which would necessarily be prejudicial to the defendant. It was
simply an indication of what would be the appropriate way of dealing with no-comment
interviews. In the case at hand, even if prejudice had been suffered initially when the
interview summary was given to the jury, the Recorder had later made it clear in his final
directions that they should not draw adverse inferences from the failure to answer ques-
tions generally, but should limit inferences to failures to mention particular facts later
relied upon.

1.3.1.9  The European Human Rights Dimension

In essence, provided that it is interpreted in a manner which ensures that a fair balance
is achieved between the exercise of the suspect’s right to remain silent and the drawing of
adverse inferences by the jury, section 34 will be regarded as Convention-compliant. In
Murray v UK80 the European Court of Human Rights addressed the drawing of inferences
under the provisions of the Criminal Evidence (Northern Ireland) Order 198881 upon
which section 34 of the Criminal Justice and Public Order Act 1994 was later modelled.
The Court was satisfied that, having regard to the weight of the prosecution evidence, and
provided appropriate safeguards are in place, pre-trial silence may be taken into account
by the tribunal of fact when assessing the persuasiveness of the prosecution case without
compromising Convention rights. It was stressed, however, that domestic law and prac-
tice must strike a balance between the exercise of the suspect’s right to remain silent and
the circumstances in which an adverse inference might be drawn from silence.
In Murray, the tribunal of fact was an experienced judge who was obliged to give a judg-
ment setting out the reasons for the decision to draw inferences and the weight attached
to them. Furthermore, this judgment and thus the exercise of the judge’s discretion were
subject to review by the appellate courts. In the subsequent case of Condron v UK82 the
Court acknowledged that these factors provided important procedural safeguards against
unfairness. In this case, which concerned the drawing of inferences under section 34, it
was noted that this provision specifically entrusted the task of assessing the evidential
value of silence to the jury. The Court considered that, in the absence of a mechanism to
assess the evidential weight attached to silence, it was of paramount importance that the
jury be properly directed. The Court was unanimous in finding fault with the trial judge’s
summing-up, which had left the jury with the option of drawing adverse inferences. It
considered that, ‘as a matter of fairness, the jury should have been directed that it could
only draw an adverse inference if satisfied that the applicants’ silence at the police inter-
view could only sensibly be attributed to their having no answer or none that would stand
up to cross-examination’.83 Accordingly, on the basis of the inadequacy of this direction
rather than any inherent deficiency in the legislative scheme, the Court concluded that
the applicants had been denied the right to a fair trial under Article 6.

79  [1998] Crim LR 418. 80  (1996) 22 EHRR 29. 81  SI 1988 No 1987.
82  (2000) 31 EHRR 1. See generally A F Jennings and E Rees, ‘Is Silence still Golden?’ [2000] 5 Archbold
News 5; P Stanley, ‘European Briefing’ (2000) 144 Solicitors’ Journal 512.
83  (2000) 31 EHRR 1 at [61]. This quotation is taken from the website of the European Court of Human

Rights. The wording of the passage as reported in EHRR is slightly different.

The Right to Silence 141

Likewise, the European Court later found a violation of Article 6 in Beckles v UK on

the basis that
the trial judge failed to give appropriate weight in his direction to the applicant’s explana-
tion for his silence at the police interview and left the jury at liberty to draw an adverse
inference from the applicant’s silence notwithstanding that it may have been satisfied as to
the plausibility of the explanation given by him . . . Quite apart from the fact that the trial
judge had undermined the value of the applicant’s explanation by referring to the lack
of independent evidence as to what was said by the solicitor and by omitting to mention
that the applicant was willing to give his version of the incident to the police before he
spoke to his solicitor, it is also to be noted that he invited the jury to reflect on whether the
applicant’s reason for his silence was ‘a good one’ without also emphasising that it must be
consistent only with guilt.84

1.3.2  Section 36
In essence, section 36 is concerned with the failure or refusal to account, in the police
station, for a particular object, substance, or mark.85 Section 36(2) provides that ‘such
inferences from the failure or refusal as appear proper’ may be drawn where, in the words
of section 36(1),
(a) a person is arrested by a constable, and there is—
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that the presence
of the object, substance or mark may be attributable to the participation of the per-
son arrested in the commission of an offence specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests him to
account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so . . .
Subsections (3), (4), (4A), and (5) are also pertinent:
(3) Subsections (1) and (2) above apply to the condition of clothing or footwear as they
apply to a substance or mark thereon.
(4) Subsections (1) and (2) above do not apply unless the accused was told in ordinary
language by the constable when making the request mentioned in subsection (1)(c)
above what the effect of this section would be if he failed or refused to comply with
the request.
(4A) Where the accused was at an authorised place of detention at the time of the failure
or refusal, subsections (1) and (2) above do not apply if he had not been allowed an
opportunity to consult a solicitor prior to the request being made.

84 (2002) 36 EHRR 13 at [64].

85 See generally A Marks, ‘Expert Evidence of Drug Traces:  Relevance, Reliability and the Right to
Silence’ [2013] Criminal Law Review 810.
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The Right to Silence and the Privilege agains t Self-Incrimination

(5) This section applies in relation to officers of customs and excise as it applies in rela-
tion to constables.

1.3.2.1  ‘Offence Specified’ (Section 36(1)(b))

There is no requirement that the precise terms of the offence, let alone the relevant statu-
tory provisions, should be specified. This was made clear by the Court of Appeal in R v
Compton, where it was held to be immaterial that a defendant who had been told when
cautioned that the officer was investigating ‘drug trafficking’ was later charged with con-
spiracy to supply cannabis and heroin. The Court stated:
The purpose of this provision is one of basic fairness, first that the defendant should
know the offence-context in which the question is being asked; and second that the reply
cannot be used against him in the context of a different prosecution. Both of those objec-
tives were fulfilled by what the officer said in this case. And Robert himself never for a
moment said that he did not understand why he was being asked the questions, nor could
he have done.86

1.3.2.2  ‘Account for’ (Section 36(1)(c))

The meaning of this phrase was also clarified in Compton:
It is . . . important to note that section 36, unlike section 34, invites no comparison
between the statement in interview and the evidence at the trial, since section 36 con-
tains no parallel to the question under section 34(1) of whether it was reasonable for the
defendant to mention a particular fact: reasonableness usually being judged from the
starting point of whether the fact was mentioned at the trial. The sole question under
section 36 is whether the defendant did ‘account for’ the presence of the substance, as
put to him by the officer. In the circumstances of Robert’s money, stowed away in a safe,
the presence of heroin on it is far from accounted for by a bare statement that Robert
was a heroin user.87
Furthermore:
It is the defendant who has to account, and account for a specific state of fact. It is not
enough for him to refer to other states of fact, from which it can be inferred what his
account might be.
Thus:
Sean, when interviewed before the heroin had been detected, said that his wife was
a heroin addict, and that the money found at his house came partly from his father,
and partly from the sale of a motor vehicle. When re-interviewed after the heroin had
been detected he gave a no comment interview. The question is whether Sean failed to
account for the presence of the heroin on the money. It was submitted on his behalf that
he had done so. The investigating authorities should have been, or were, aware that the
heroin could have come from handling by his father, known by the police to be a dealer
in heroin; or from the purchaser of the car, who was similarly known; or from his wife.
We do not agree.88
A study published in 2000 found that 70 per cent of suspects failed or refused to provide
accounts pursuant to section 36. Accounts considered by officers to be satisfactory were

86  [2002] EWCA Crim 2835 at [33]. 87  [2002] EWCA Crim 2835 at [32].
88  [2002] EWCA Crim 2835 at [34] (italics in original).
The Right to Silence 143

given in 19 per cent of cases, while in the remaining 11 per cent of cases accounts consid-
ered to be unsatisfactory were given.89

1.3.3  Section 37
In essence, section 37 is concerned with a person’s failure or refusal to account, in the
police station, for his or her having been present at a particular place. Section 37(2) pro-
vides that ‘such inferences from the failure or refusal as appear proper’ may be drawn
where, in the words of section 37(1),
(a) a person arrested by a constable was found by him at a place at or about the time the
offence for which he was arrested is alleged to have been committed; and
(b) that or another constable investigating the offence reasonably believes that the pres-
ence of the person at that place and at that time may be attributable to his participa-
tion in the commission of the offence; and
(c) the constable informs the person that he so believes, and requests him to account for
that presence; and
(d) the person fails or refuses to do so . . .
Subsections (3), (3A), and (4) are also pertinent:
(3) Subsections (1) and (2) do not apply unless the accused was told in ordinary lan-
guage by the constable when making the request mentioned in subsection (1)(c)
above what the effect of this section would be if he failed or refused to comply with
the request.
(3A) Where the accused was at an authorised place of detention at the time of the failure
or refusal, subsections (1) and (2) do not apply if he had not been allowed an oppor-
tunity to consult a solicitor prior to the request being made.
(4) This section applies in relation to officers of customs and excise as it applies in rela-
tion to constables.
A study published in 2000 found that 77 per cent of suspects failed or refused to provide
accounts pursuant to section 37. Accounts considered by officers to be satisfactory were
given in 13 per cent of cases, while in the remaining 10 per cent of cases accounts consid-
ered to be unsatisfactory were given.90

1.3.4  Concluding Remarks

While, on one view, the right to remain silent in England and Wales remains technically
unaffected by sections 34, 36, and 37 of the 1994 Act, it is clear that the right has been
substantially attenuated. Allowing adverse inferences to be drawn is—to quote a com-
ment made in a different context—‘tantamount to imposing a penalty for relying upon
a procedural right’.91 Unsurprisingly perhaps, the ‘new’ provisions may well have had
the effect of reducing the extent to which the right to silence is exercised during police
interviews. A study conducted just over a year before the introduction of the provisions

89  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 39–40.

90  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 39–40.

91  S Nash, ‘Silence as Evidence: A Commonsense Development or a Violation of a Basic Right?’ (1997) 21

Criminal Law Journal 145, 151.

144
The Right to Silence and the Privilege agains t Self-Incrimination

found that 77 per cent of suspects answered all questions, 13 per cent refused to answer
some questions, and 10 per cent refused to answer any questions. A study conducted after
the introduction of the provisions revealed figures of 84 per cent, 10 per cent, and 6 per
cent respectively.92 Interestingly, however, the percentage of suspects who had refused to
answer some or any questions and who were subsequently charged actually fell slightly,
the relevant figures being 70 per cent in the earlier study and 64 per cent in the later one.93
Predictably, empirical research has shown that fear of adverse inferences is the factor
most mentioned by solicitors as a reason for advising suspects to speak.94 The fact that
solicitors began having to spend significantly longer periods in attendance in order to
discharge properly their duty of advising clients whether to speak also led to a substantial
increase in the costs of the duty solicitor scheme.95
It may be argued that the considerable difficulties involved in administering the provi-
sions that restrict the right to silence are wholly disproportionate to any benefits to the
prosecution that the provisions may bring. Such concern has been expressed in relation to
section 34 both by commentators96 and by the Court of Appeal, which remarked that ‘it
is a matter of some anxiety that, even in the simplest and most straightforward of cases,
where a direction is to be given under Section 34 it seems to require a direction of such
length and detail that it seems to promote the adverse inference question to a height it does
not merit’.97

1.4  Exclusion of Evidence of Silence

It is to be noted that all powers to exclude evidence in the exercise of discretion are pre-
served by section 38(6) of the Criminal Justice and Public Order Act 1994. Thus it would
be open to a trial judge to exclude the evidence of silence altogether pursuant to section
78(1) of the Police and Criminal Evidence Act 1984 or the common law discretion to
exclude evidence to ensure a fair trial.98 From the viewpoint of the defence this would
obviously be a preferable outcome to one involving consideration of the evidence by the
jury and the possibility of adverse inferences being drawn. Presumably the considerations
which would be taken into account in determining whether evidence of silence ought to
be excluded in the exercise of discretion would be analogous to those identified in the
previous chapter as being of relevance to the discretionary exclusion of confession evi-
dence. ‘If the circumstances are such that it would be unfair to permit the prosecution to
rely on admissions, it should be equally unfair to allow them to rely on failure to mention
relevant facts.’99 As the Court of Appeal has noted:
there will be some situations in which a judge should rule against the admissibility
of evidence [of silence]. For example (and only by way of example), the judge might

92  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 31.

93  T Bucke, R Street, and D Brown, The Right of Silence: The Impact of the Criminal Justice and Public

Order Act 1994 (Home Office Research Study 199) (2000) 40–1.

94  J Williams, ‘Inferences from Silence’ (1997) 141 Solicitors’ Journal 566, 567.
95  D Wolchover and A Heaton-Armstrong, ‘Labour’s Victory and the Right to Silence—2’ (1997) 147 New

Law Journal 1434, 1435.

96  See, eg, D Birch, ‘Suffering in Silence: A Cost-Benefit Analysis of Section 34 of the Criminal Justice

and Public Order Act 1994’ [1999] Criminal Law Review 769.

97  R v Bresa [2005] EWCA Crim 1414 at [4]‌.
98 Cf R v Pointer [1998] Crim LR 676; R v Odeyemi [1999] Crim LR 828.
99  E Cape, ‘Sidelining Defence Lawyers:  Police Station Advice after Condron’ (1997) 1 International

Journal of Evidence and Proof 386, 388.

The Privilege agains t Self-Incrimination 145

so rule in the case of an unlawful arrest where a breach of the Codes had occurred,
or if the situation were one in which a jury properly directed could not properly
draw an inference adverse to a defendant. Again such a situation might arise if, in
application of section 78, the judge concluded that the prejudicial effect of evidence
outweighed any probative value it might reasonably have. However, save in a case
of such a kind the proper course in our judgment is ordinarily for a trial judge to
allow evidence to be given and direct a jury carefully concerning the drawing of
inferences.100

2  The Privilege against Self-Incrimination

2.1  Civil Proceedings
The position with respect to the privilege against self-incrimination in civil proceedings
is discussed briefly in Chapter 9.

2.2  Criminal Proceedings

By permitting adverse inferences to be drawn in certain circumstances, section 34 of
the Criminal Justice and Public Order Act 1994 may be regarded as imposing an indi-
rect sanction for a defendant’s failure to mention a fact in interview. On occasion, how-
ever, a statutory provision may prescribe a criminal sanction for refusing to provide
information to the authorities. The jurisprudence of the European Court of Human
Rights on the privilege against self-incrimination101 is notable for its uncertainty and
inconsistency.102 Some general principles may, however, have emerged from the relevant
judgments. In Funke v France,103 the European Court held that fair trial guarantees
derived from Article 6 included the privilege against self-incrimination, which could
not be restricted without significant justification. Attempts by French customs authori-
ties to compel the applicant to produce bank statements were found to contravene
Article 6.  In Saunders v UK,104 a case involving statements made to DTI inspectors
acting under compulsory powers provided by the Companies Act 1985, the Court held
that the privilege against self-incrimination
presupposes that the prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of coercion or oppression
in defiance of the will of the accused.105

100  R v Argent [1997] 2 Cr App R 27, 31. See also R v Dervish [2001] EWCA Crim 2789, [2002] 2 Cr App

R 6 at [50]: ‘If allowing an inference would in counsel’s words nullify the safeguards contained in the 1984
Act and the Codes, clearly that would be a basis upon which the judge should not permit the jury to consider
drawing such an inference. Equally if there was bad faith by the police deliberately breaching the safeguards
“in the knowledge that they would still have the benefit of section 34(1)(b) to fall back on”, it would be likely
that the judge would not invite consideration of any adverse inference.’
101  On the privilege against self-incrimination, see generally A  L-T Choo, The Privilege against Self-

Incrimination and Criminal Justice (2013).

102  See generally A L-T Choo and S Nash, ‘Evidence Law in England and Wales:  The Impact of the

Human Rights Act 1998’ (2003) 7 International Journal of Evidence and Proof 31, 37–43 (on which
I have drawn in this section); A L-T Choo, The Privilege against Self-Incrimination and Criminal Justice
(2013) Ch 2.
103  (1993) 16 EHRR 297. See generally A S Butler, ‘Funke v France and the Right against Self-Incrimination:

A Critical Analysis’ (2000) 11 Criminal Law Forum 461.

104  (1996) 23 EHRR 313. 105  (1996) 23 EHRR 313 at [68].
146
The Right to Silence and the Privilege agains t Self-Incrimination

Regardless of whether the transcripts were directly self-incriminating, the fact that the
authorities made use of them in subsequent criminal proceedings was considered to
constitute a violation of Article 6. The Court considered that the public interest in the
prosecution of complex and serious cases was insufficient to justify the admission of the
evidence.106
Two separate questions arise for consideration. First, would a prosecution, under the
statutory provision in question, for the failure to provide information breach Article 6?
Secondly, if information is in fact provided, would the use in evidence of the ‘compelled
information’ constitute a violation of Article 6? Both questions were considered by the
Grand Chamber of the European Court of Human Rights in O’Halloran and Francis v
UK,107 in the context of legislation (section 172(2) of the Road Traffic Act 1988) requiring
the registered keeper of a vehicle (section 172(2)(a)) or any other person (section 172(2)(b))
to provide the police with information relating to the identity of the driver of the vehi-
cle on an occasion when the driver allegedly committed an offence. Both O’Halloran’s
and Francis’s vehicles were ‘caught’ on speed cameras, and they were served with requests
under section 172(2)(a). O’Halloran responded that he had been driving and was pros-
ecuted for speeding. Francis refused to provide the information requested and was pros-
ecuted under section 172(3), which made it an offence to fail to comply with a request
under section 172(2). The Grand Chamber held, in effect, that, in determining in either
situation whether Article 6 had been violated, a balancing approach should be adopted.
A number of factors were regarded as relevant in this case. First, ‘those who choose to keep
and drive motor cars can be taken to have accepted certain responsibilities and obligations
as part of the regulatory regime relating to motor vehicles’.108 Secondly, ‘a further aspect of
the compulsion applied in the present cases is the limited nature of the inquiry which the
police were authorised to undertake. Section 172(2)(a) applies only where the driver of the
vehicle is alleged to have committed a relevant offence, and authorises the police to require
information only, “as to the identity of the driver”.’ Thirdly, ‘s 172 does not sanction pro-
longed questioning about facts alleged to give rise to criminal offences’, with the penalty
for declining to answer being moderate and non-custodial.109 Fourthly, ‘no offence is com-
mitted under s 172(2)(a) if the keeper of the vehicle shows that he did not know and could
not with reasonable diligence have known who the driver of the vehicle was. The offence is
thus not one of strict liability, and the risk of unreliable admissions is negligible.’110 Fifthly,
in the case of O’Halloran, ‘the identity of the driver is only one element in the offence of
speeding, and there is no question of a conviction arising in the underlying proceedings in
respect solely of the information obtained as a result of s 172(2)(a)’.111 The Court concluded,
therefore, that Article 6(1) of the Convention had not been violated:
Having regard to all the circumstances of the case, including the special nature of the
regulatory regime at issue and the limited nature of the information sought by a notice

106  (1996) 23 EHRR 313 at [74]. See also Kansal v UK (2004) 39 EHRR 31. As a consequence of the

Saunders judgment, legislation was introduced which restricted the use of compelled statements in crimi-
nal proceedings. Thus the Youth Justice and Criminal Evidence Act 1999, through s 59 and Sch 3, made
amendments to certain legislation. See generally S Knights, ‘Examinations, Investigations and the Right to
a Fair Trial Post Saunders v UK’ [2004] 1 Criminal Bar Association Newsletter 6.
107  (2007) 46 EHRR 21. See generally M Birdling, ‘Self-Incrimination Goes to Strasbourg: O’Halloran

and Francis v United Kingdom’ (2008) 12 International Journal of Evidence and Proof 58; S Burns, ‘Good
to Talk?’ (2007) 157 New Law Journal 1454; J R Spencer, ‘Curbing Speed and Limiting the Right of Silence’
[2007] Cambridge Law Journal 531.
108  (2007) 46 EHRR 21 at [57]. 109  (2007) 46 EHRR 21 at [58].
110  (2007) 46 EHRR 21 at [59]. 111  (2007) 46 EHRR 21 at [60].
The Privilege agains t Self-Incrimination 147

under s 172 of the Road Traffic Act 1988, the Court considers that the essence of the appli-
cants’ . . . privilege against self-incrimination has not been destroyed.112
Whatever the merits of the conclusion reached by the Court in relation to both
O’Halloran and Francis, its judgment may be criticized for endorsing too heavily a
vague approach involving ‘balancing’ competing considerations.113 One objection to
the approach might be a practical one: one might ‘question whether there is now any
coherent guidance’114 to aid the determination of whether Article 6 has been violated
in a particular case. Perhaps of greater importance is a more principled objection to
the approach: the very essence of a right would seem to be devalued if it can simply be
‘balanced away’ on an apparently ad hoc basis. One solution might be to work from
a strong presumption that the right against self-incrimination inherent in Article 6
should always be available, but to recognize limited and clearly defined exceptions to it.
As Ashworth has noted:
Although the outcome of the case may be regarded as inevitable, the route by which the
Grand Chamber reached its conclusion is unsatisfactory. Rather than recognising a lim-
ited exception to the privilege against self-incrimination, based on an emerging European
consensus and on an assessment that the exception would not be too damaging to the
privilege overall, it has . . . suggest[ed] that a wider range of factors should be considered in
deciding whether a particular instance of self-incrimination constitutes a violation of the
privilege. Some may think that the difference between the two routes is not great . . . But
the fear is that . . . it will come to regard this and other Art 6 rights as capable of being
traded off against the public interest.115
At the same time, the possibility that ‘balancing’ may come down in favour of upholding
the privilege in particular circumstances should not be overlooked. In a case concerning
allegations of tax evasion, the Court of Appeal held that the ‘balance’ favoured the right
to withhold incriminating information:
A wilful refusal to comply with an order for disclosure will amount to a contempt of
court which may attract the not insignificant sanction of imprisonment. The nature of
the compulsion that may be applied to enforce compliance with the obligation to disclose
information that is of an incriminating nature is therefore severe. The social purpose
for which the Crown seeks to adduce the evidence in criminal proceedings is the sup-
pression of tax evasion. No doubt the protection of the public revenue is an important
social objective, but the question is whether the admission of evidence obtained from
the accused under threat of imprisonment is a reasonable and proportionate response to
that social need. In our view it is not. . . . we do not think that the need to punish and deter
tax evasion is sufficient to justify such an infringement of the right of the accused not to
incriminate himself.

112  (2007) 46 EHRR 21 at [62].

113  For various perspectives on ‘balancing’ see A Barak, ‘Proportionality and Principled Balancing’ (2010)
4 Law and Ethics of Human Rights 1; N A J Croquet, ‘The Right of Silence and Not to Self-Incriminate under
the European Convention on Human Rights: To What Extent Are They Qualified?’ (2008) 4 Cambridge
Student Law Review 214; S Gardbaum, ‘A Democratic Defense of Constitutional Balancing’ (2010) 4 Law
and Ethics of Human Rights 79; L Hoyano, ‘What Is Balanced on the Scales of Justice? In Search of the
Essence of the Right to a Fair Trial’ [2014] Criminal Law Review 4; D Meyerson, ‘Why Courts Should not
Balance Rights against the Public Interest’ (2007) 31 Melbourne University Law Review 873; J Rivers, ‘The
Presumption of Proportionality’ (2014) 77 Modern Law Review 409.
114  M Birdling, ‘Self-Incrimination Goes to Strasbourg:  O’Halloran and Francis v United Kingdom’

(2008) 12 International Journal of Evidence and Proof 58, 61 (italics in original).

115  A J Ashworth, Commentary on O’Halloran and Francis at [2007] Crim LR 900.
148
The Right to Silence and the Privilege agains t Self-Incrimination

For these reasons, . . . the use of the admissions made by K . . . would deprive K of the fair
trial to which he is entitled under [A]‌r ticle 6 of the Convention . . .116
A number of issues now fall for further consideration.

2.2.1  Use of ‘Compelled Information’

It is to be noted that the approach in O’Halloran and Francis to determining the extent
to which the use of ‘compelled information’ may violate the privilege against self-
incrimination is consistent with earlier domestic jurisprudence on section 172(2), most
notably the decision of the Privy Council in Brown v Stott.117

2.2.2  Prosecutions for Failure to Provide Information

It would appear necessary to distinguish between a criminal investigation and a purely
administrative investigation or inquiry.118 The decision in R v Hertfordshire County
Council, ex p Green Industries Ltd119 concerned the latter. Taking account of the European
Court jurisprudence, the House of Lords held here that the relevant provisions of the
Environmental Protection Act 1990, which effectively required local councils to provide
regular detailed reports on their waste management activities, and made it an offence to
fail to provide information, were not incompatible with the Convention. While noting
obscurities in the European Court’s reasoning in Funke,120 Lord Hoffmann was satisfied
that the Saunders judgment was ‘perfectly clear’ on the issue of the use of compulsory
powers in preparatory investigations:
European jurisprudence under [A]‌r ticle 6(1) is firmly anchored to the fairness of the trial
and is not concerned with extrajudicial inquiries. Such impact as [A]rticle 6(1) may have

116
  R v K (A) [2009] EWCA Crim 1640, [2010] QB 343 at [42]–[43].
117
  [2001] 2 WLR 817. See generally P Mirfield, ‘Silence, Innocence and Human Rights’, 135–7, in P
Mirfield and R Smith (eds), Essays for Colin Tapper (2003); R Pillay, ‘Self-Incrimination and Article 6: The
Decision of the Privy Council in Procurator Fiscal v Brown’ [2001] European Human Rights Law Review
78. See also DPP v Wilson [2001] EWHC Admin 198, (2001) 165 JP 715; Mawdesley v Chief Constable of
Cheshire [2003] EWHC 1586 (Admin), [2004] 1 WLR 1035. Canadian law similarly does not recognize ‘an
abstract and absolute rule that would prevent the use of information in all contexts in which it is statuto-
rily compelled . . . A court must begin “on the ground”, with a concrete and contextual analysis of all the
circumstances, in order to determine whether or not the principle against self-incrimination is actually
engaged . . . This analysis necessarily involves a balancing of principles. One must, in assessing the limits
on compellability demanded by the principle against self-incrimination, consider the opposing principle
of fundamental justice suggesting that relevant evidence should be available to the trier of fact in a search
for truth’: R v Jarvis [2002] 3 SCR 757 at [68]. See also R v White [1999] 2 SCR 417 and, generally, S Penney,
‘The Continuing Evolution of the S 7 Self-Incrimination Principle: R v White’ (1999) 24 Criminal Reports
(5th) 247. Cf R v SAB [2003] 2 SCR 678 and see generally D Stratas, ‘R v B (S A) and the Right Against
Self-Incrimination: A Confusing Change of Direction’ (2004) 14 Criminal Reports (6th) 227; L Stuesser, ‘R v
SAB: Putting “Self-Incrimination” in Context’ (2004) 42 Alberta Law Review 543.
118  See generally A Cowell, ‘The ECHR and Company Investigations’ [2000] 8 Archbold News 5;

A MacCulloch, ‘The Privilege against Self-Incrimination in Competition Investigations:  Theoretical

Foundations and Practical Implications’ (2006) 26 Legal Studies 211. For a historical perspective see C
Sherrin, ‘The Privilege against Self-Incrimination in Regulatory Proceedings:  Beginnings (that never
Began)’ (2004) 30 Manitoba Law Journal 315.
119  [2000] 2 WLR 373. See generally H Davies and B Hopkins, ‘Environmental Crime and the Privilege

against Self-Incrimination’ (2000) 4 International Journal of Evidence and Proof 177; J Fisher and
E Schulster, ‘Finding the Right Balance’ (2000) 150 New Law Journal 988; M Scanlan and R Monnick,
‘Investigatory Powers and the Right to a Fair Trial’ (2000) 144 Solicitors’ Journal 652; M Stallworthy, ‘The
Regulation and Investigation of Commercial Activities in the United Kingdom and the Privilege against
Self-Incrimination’ [2000] International Company and Commercial Law Review 167.
120  [2000] 2 WLR 373, 382.
The Privilege agains t Self-Incrimination 149

is upon the use of such evidence at a criminal trial. Although it is true that the council[,]
unlike the DTI inspectors, had power to prosecute in criminal proceedings, I do not think
that the request for information under section 71(2) could be described as an adjudication,
‘either in form or in substance.’ The Saunders case is therefore no authority for allowing
the appellants to refuse to answer.121
Thus, using compulsory powers to take statements in the course of an administrative
investigation is not in conflict with Article 6.
In a similar vein, the Court of Appeal in R v Kearns122 expressed its approval of
a legislative strategy which obliged individuals to supply information. The Court
found ‘ample justification’ for concluding that the demand for information by the
Official Receiver under section 354(3)(a) of the Insolvency Act 1986 was a proportion-
ate legislative response to the problem of administering and investigating bankrupt
estates:
The relevant part of the Insolvency Act 1986 is designed to deal with the social and
economic problem of bankrupts. It is in the public interest that the affairs of bankrupts
should be investigated, that the assets are traced and got in, and that the assets are
then distributed to creditors. . . . The bankrupt is frequently the only person who can
provide the necessary information about the bankrupt estate. There is, in our view, an
obvious need for a statutory regime that imposes a duty on a bankrupt to co-operate
in providing full and accurate information . . . Equally clearly that duty should be
backed up by appropriate statutory sanctions to ensure that the duty is carried out
properly.123
In both Ex p Green and Kearns, then, the demand for information was made in the
course of an extra-judicial procedure and there was no suggestion that any compelled
statements would be used in subsequent criminal proceedings. These decisions would
appear to be consistent with the distinction drawn by the European Court of Human
Rights in IJL v UK124 between criminal investigations and administrative inquiries.
The Court considered that ‘a legal requirement for an individual to give information
demanded by an administrative body’ would not, of itself, infringe Article 6. Thus, an
examination of ‘the nature and purpose of investigations conducted by DTI inspectors’
suggested that
the functions performed by the inspectors appointed under section 432(2) of the
Companies Act 1985 were essentially investigative in nature and that they did not
adjudicate either in form or in substance. Their purpose was to ascertain and record
facts which might subsequently be used as the basis for action by other competent
authorities—prosecuting, regulatory, disciplinary or even legislative . . . a require-
ment that such a preparatory investigation should be subject to the guarantees of
a judicial procedure as set forth in Article 6(1) would in practice unduly hamper
the effective regulation in the public interest of complex financial and commercial
activities.125
It is clearly important that a careful determination be made in individual cases of the
true character of the investigation or inquiry in question. There is at times no sharp

121  [2000] 2 WLR 373, 381–2.

122  [2002] EWCA Crim 748, [2002] 1 WLR 2815. See generally A Henderson, ‘Defining the Limits of
Silence (2)’ (2002) 146 Solicitors’ Journal 508.
123  [2002] EWCA Crim 748, [2002] 1 WLR 2815 at [55]. 124  (2000) 33 EHRR 11.
125  (2000) 33 EHRR 11 at [100] (italics added).
150
The Right to Silence and the Privilege agains t Self-Incrimination

distinction between criminal and non-criminal inquiries, particularly in the context of

financial investigations.126
Prosecutions for failure to provide information in criminal investigations clearly
have the potential to engage Article 6.  What is unclear, however, is whether Article 6
will indeed be violated. On this point the approach to be adopted, as we have seen, is
the rather unsatisfactory and vague one of ‘balancing competing interests’ to discover
whether Article 6 has been violated.127 A case distinguished by the Court in O’Halloran
and Francis was Heaney v Ireland.128 The applicants were arrested in connection with
serious terrorist offences and questioned under legislation which required them to give
an account of their movements and made it an offence to fail to do so. They complained,
inter alia, that their convictions for refusing to answer questions amounted to a violation
of Article 6(1). Citing Saunders and Funke with approval, the Court found that the secu-
rity and public order concerns of the Irish Government did not justify ‘a provision which
extinguishes the very essence of the’ privilege against self-incrimination.129
While prepared to accept that this privilege was not absolute and in appropriate cir-
cumstances could be subject to some restriction, the Court considered that the threat of
a prison sentence for non-compliance amounted to a degree of compulsion which effec-
tively destroyed rather than restricted the privilege.
Also distinguished in O’Halloran and Francis was Shannon v UK. In this case the
European Court held that
the requirement for the applicant to attend an interview with financial investigators
[appointed under the Proceeds of Crime (Northern Ireland) Order 1996] and to be com-
pelled to answer questions in connection with events in respect of which he had already
been charged with offences was not compatible with his right not to incriminate himself.
There has therefore been a violation of Art 6(1) of the Convention.130
A final point of note is that the European Court would seem to require, for a finding that
the imposition of a criminal sanction for not providing information violates Article 6,
some degree of possibility that, if the information had been provided, it would have been
used in a subsequent criminal prosecution. Thus, to prosecute a person for failing to pro-
vide information about the identity of the driver of his car would not violate Article 6 if
the link between the . . . obligation under [the relevant legislation] to disclose the driver of
his car and possible criminal proceedings for speeding against him remains remote and
hypothetical . . . without a sufficiently concrete link with these criminal proceedings the
use of compulsory powers (ie the imposition of a fine) to obtain information does not raise
an issue with regard to . . . the privilege against self-incrimination.131
It is questionable whether so much should turn on whether any compelled informa-
tion might be used in a subsequent criminal prosecution against the provider of the
information:
might it be objectionable[, for example,] to require that someone give an account of
their movements . . . even if the information so revealed is not used against them at trial?

126  See C Sherrin, ‘Distinguishing Charter Rights in Criminal and Regulatory Investigations: What’s the

Purpose of Analyzing Purpose?’ (2010) 48 Alberta Law Review 93.

127  See also, on s 172(2)(a) and s 172(3) of the Road Traffic Act 1988, Charlebois v DPP [2003] EWHC 54

(Admin).
128  (2000) 33 EHRR 12. 129  (2000) 33 EHRR 12 at [58]. 130  (2005) 42 EHRR 31 at [41].
131  Rieg v Austria, Application no 63207/00, 24 Mar 2005 at [31], quoting from Weh v Austria (2004) 40

EHRR 37 at [56] (italics added).

The Privilege agains t Self-Incrimination 151

It might perhaps be thought enough if the information would help the prosecution, for
example by leading to other evidence that could be used at trial. One might also take the
view that the requirement is objectionable in itself, even if there was a guarantee that no
prosecution would follow.132

2.2.3  Production of Documents and Other Real Evidence

Some doubt remains about whether the privilege against self-incrimination applies to
documentary evidence. In Funke the European Court was satisfied that this right attached
to bank statements in the applicant’s possession. However, in Saunders the Court drew
a distinction between compelled statements and real evidence, finding that the right
against self-incrimination did not apply to material having
an existence independent of the will of the suspect such as, inter alia, documents acquired
pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose
of DNA testing.133
This is further subject to Jalloh v Germany, in which the Grand Chamber of the Court
held that the privilege against self-incrimination was applicable where the defendant
regurgitated a bag of cocaine that he had swallowed as a result of the forced administra-
tion of emetics. The Court, distinguishing this situation from the obtaining of samples
such as breath, blood, urine, or DNA samples, held that
the degree of force used in the present case differs significantly from the degree of compul-
sion normally required to obtain the types of material referred to in the Saunders case. To
obtain such material, a defendant is requested to endure passively a minor interference
with his physical integrity (for example when blood or hair samples or bodily tissue are
taken). Even if the defendant’s active participation is required, . . . this concerns material
produced by the normal functioning of the body (such as, for example, breath, urine or
voice samples). In contrast, compelling the applicant in the instant case to regurgitate
the evidence sought required the forcible introduction of a tube through his nose and the
administration of a substance so as to provoke a pathological reaction in his body. . . . this
procedure was not without risk to the applicant’s health.134
In JB v Switzerland135 the European Court found that a prosecution for failing to produce
possibly incriminatory documents breached Article 6(1), evidently adopting Funke in
preference to Saunders on this point. Where the penalty for failing to provide informa-
tion was ‘essentially punitive and deterrent in nature’,136 it was immaterial that the provi-
sion was contained within non-criminal legislation. The quality of the Court’s reasoning
in this case has been subjected to some criticism.137 Noting the inconsistencies in the
European Court jurisprudence, the Court of Appeal in A-G’s Reference (No 7 of 2000)138
suggested that, where no clear answer could be found there, it would be appropriate to fol-
low national authorities.139 Drawing a distinction between compelled statements on the

132  A Ashworth and M Redmayne, The Criminal Process (3rd ed 2005) 136–7.

133  (1996) 23 EHRR 313 at [69]. 134  (2006) 44 EHRR 32 at [114].
135  Application no 31827/96, 3 May 2001. 136  Application no 31827/96, 3 May 2001 at [48].
137  A Ashworth, ‘The Self-Incrimination Saga’ [2001] 5 Archbold News 5; I H Dennis, The Law of Evidence

(5th ed 2013) 168.
138  [2001] EWCA Crim 888, [2001] 2 Cr App R 19. See generally A Henderson, ‘Defining the Limits of

Silence’ (2001) 145 Solicitors’ Journal 432.

139  Those particularly identified were the decisions of the House of Lords in R v Director of Serious Fraud

Office, ex p Smith [1993] AC 1, AT & T Istel Ltd v Tully [1993] AC 45, and R v Hertfordshire County Council,
ex p Green Industries Ltd [2000] 2 WLR 373.
152
The Right to Silence and the Privilege agains t Self-Incrimination

one hand, and the production of a pre-existing document or real evidence on the other,
the Court of Appeal accepted that it would be objectionable to use evidence which the
accused was forced to create by the use of compulsory powers. However, using compul-
sory powers to oblige the defendant to deliver up evidence which was already in existence
and had an existence independent of the will of the accused would not be contrary to the
fair trial guarantees provided by Article 6.
In R v Allen140 the House of Lords held that a prosecution for submitting a tax return
containing false information would not be contrary to Article 6. The House observed that
citizens had an obligation to pay taxes and a duty not to cheat the Revenue. In order to
ensure the payment of taxes, the State had to have the power to require individuals to pro-
vide information about their annual income, and to have sanctions available to enforce
the provision of this information.141

3  Summary and Conclusion

Sections 34, 36, and 37 of the Criminal Justice and Public Order Act 1994, which per-
mit adverse inferences to be drawn from certain failures of the defendant at the pre-trial
stage, have proved controversial. Section 34, in particular, has generated a substantial
body of case law. The manner in which the Court of Appeal has resolved the issue of
silence on legal advice has been subjected to particular criticism. The operation of section
34 has been held to be compatible with the European Convention on Human Rights so
long as a sufficiently watertight direction is given to the jury.
Statutory provisions may specifically criminalize the failure to provide information to
law enforcement authorities. The judgment of the Grand Chamber of the European Court
of Human Rights in O’Halloran and Francis v UK confirms that a ‘balancing’ approach is
to be taken to the question whether Article 6 is violated either by a prosecution in which
information provided is used, or by a prosecution for failing to provide the information
requested. Such an approach may be criticized for being insufficiently robust. The precise
extent to which the privilege against self-incrimination applies to real evidence remains
uncertain and is an issue requiring resolution.

Further Reading
A L-T Choo, The Privilege against Self-Incrimination and Criminal Justice (2013)
S Easton, Silence and Confessions: The Suspect as the Source of Evidence (2014)

140 [2001] UKHL 45, [2002] 1 AC 509.

141 [2001] UKHL 45, [2002] 1 AC 509 at [29]–[30]. An application to the European Court of Human
Rights was held to be inadmissible: Allen v UK (Admissibility), Application no 76574/01, 10 Sept 2002. See
also King v UK, Application no 13881/02, 8 Apr 2003.
6
Identification Evidence

1  Mistaken Identifications
It is well known that identification evidence,1 like confession evidence, has contrib-
uted to a number of significant miscarriages of justice.2 The infamous case of Beck at
the end of the 19th and beginning of the 20th centuries provides a striking example,
but such cases continue to come before the courts. 3 In 1998, the Court of Appeal, on a
reference by the Criminal Cases Review Commission, quashed the 46-year-old murder
conviction of Mahmoud Hussein Mattan on the basis that the purported identification
of Mattan by a key witness was demonstrably flawed.4 Mattan had been hanged for the
murder in 1952.
Essentially, there are three categories of factors which may contribute to the mis-
taken identification of the defendant as the perpetrator of the offence. These may be
termed witness factors, event factors, and post-event factors. 5 Witness factors relate to
erroneous perception on the part of the witness at the time of the event. Possible wit-
ness factors include the witness’s defective eyesight, the witness’s expectations, the wit-
ness’s stress or arousal level at the time of the event, and the activity in which the
witness was engaged at the time of the event. The possible contribution of defective
eyesight to faulty perception is obvious.6 Further, a witness may ‘perceive’ what he or

1  See generally P Bogan and A Roberts, Identification: Investigation, Trial and Scientific Evidence (2nd

ed 2011).
2 See generally J D Read, ‘Features of Eyewitness Testimony Evidence Implicated in Wrongful

Convictions’ (2006) 31 Manitoba Law Journal 523.

3  For discussions of the Beck case, see B Cathcart, ‘The Strange Case of Adolf Beck’, The Independent on

Sunday, 17 Oct 2004, 19; P Hill, ‘A Century of Consistency’ (1998) 148 New Law Journal 1028; J Hunter and
K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (1995) 394–5.
4  R v Mattan, The Times, 5 Mar 1998.
5  See generally I Fraser, M Houlihan, L Bond-Fraser, and C Ellis, ‘Is the Accuracy of Eyewitness

Testimony Common Knowledge?’ (2013) 59 Criminal Law Quarterly 498; M Stone, ‘Criminal
Trials:  The Reliability of Evidence—Part  1’ (2009) 173 Criminal Law and Justice Weekly 532; M
Stone, ‘Criminal Trials:  The Reliability of Evidence—Part  2’ (2009) 173 Criminal Law and Justice
Weekly 551; E F Loftus, D Wolchover, and D Page, ‘General Review of the Psychology of Witness
Testimony’ in A  Heaton-Armstrong, E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness
Testimony: Psychological, Investigative and Evidential Perspectives (2006); B L Cutler and S D Penrod,
Mistaken Identification: The Eyewitness, Psychology, and the Law (1995) Chs 6 and 7; M R Kebbell and
G F Wagstaff, Face Value? Evaluating the Accuracy of Eyewitness Information (Police Research Series
Paper 102) (1999); R Wilcock, R Bull, and R Milne, Witness Identification in Criminal Cases: Psychology
and Practice (2008).
6  See A D Yarmey, The Psychology of Eyewitness Testimony (1979) 39.
154
Identific ation E vidence

she actually expects to perceive; this expectation may be the result either of his or her
biases and prejudices,7 or of his or her past experience.8 Stress or arousal is relevant,
according to the so-called ‘Yerkes–Dodson’ law, in the following way. Perceptual abil-
ity may not be impaired at low levels of arousal, and will be at its optimum at moderate
levels of arousal, but will begin to decrease at high levels of arousal.9 As for percep-
tual activity, it is clear that the ability to perceive accurately may be dependent upon
the activity in which the witness is engaged while ‘perceiving’: ‘for example, an eye-
witness to a robbery could spend a good deal of time examining the individual fea-
tures of the face, or he could spend most of his time staring in the direction of the
face but might actually be trying to figure out how to escape from an unpleasant
situation’.10
Event factors relate to the actual event itself, and include exposure duration (the
longer the perpetrator is seen, the more reliable a subsequent identification is likely
to be); the presence of a weapon (if the perpetrator is carrying a weapon, the witness’s
attention is likely to be focused upon the weapon rather than upon the perpetra-
tor’s facial and physical characteristics); and the ethnicity and gender of the perpe-
trator (same-race and same-gender identifications are likely to be more reliable than
cross-race and cross-gender identifications).11
In relation to post-event factors, the following comment is pertinent:
The widely held belief of the general public is that people store visual and sound memories
rather like a video recorder. However, general research on memory, and more specific
research on eyewitness identification, have shown that human memory and perception
do not work like that.12
Pre-eminent amongst post-event factors is the passage of time. The identification of
persons may be expected to be more reliable if the event in question is recent rather than
one which occurred in the more distant past.13
Over the past few decades, two main mechanisms for dealing with the issue of evidence
of identification of the defendant have evolved in English law. First, there is a requirement
that warnings about identification evidence be given to the jury in certain circumstances.
Secondly, Code D of the Codes of Practice issued under the Police and Criminal Evidence
Act 1984 makes provision in relation to different methods of generating identification
evidence, and breaches of this Code may lead to the discretionary exclusion of identifi-
cation evidence under section 78(1). Each of these mechanisms will now be considered
in turn.

7  See, eg, the classic experiments conducted in the 1940s by Allport and Postman: G W Allport and L

Postman, The Psychology of Rumor (1947) (reprinted 1965) 111. See also E F Loftus, Eyewitness Testimony
(1979) 40.
8  See K D Williams, E F Loftus, and K A Deffenbacher, ‘Eyewitness Evidence and Testimony’, 144, in D

K Kagehiro and W S Laufer (eds), Handbook of Psychology and Law (1992).

9  See B L Cutler and S D Penrod, Mistaken Identification:  The Eyewitness, Psychology, and the Law

(1995) 103–4.
10  E F Loftus, Eyewitness Testimony (1979) 48.
11  See B L Cutler and S D Penrod, Mistaken Identification:  The Eyewitness, Psychology, and the Law

(1995) 101–5.
12 I  McKenzie and P Dunk, ‘Identification Parades:  Psychological and Practical Realities’, 178, in

A Heaton-Armstrong, E Shepherd, and D Wolchover (eds), Analysing Witness Testimony: A Guide for Legal
Practitioners and Other Professionals (1999).
13  See B L Cutler and S D Penrod, Mistaken Identification:  The Eyewitness, Psychology, and the Law

(1995) 105–6.
TURNBULL WARNINGS 155

2  Turnbull Warnings
In R v Turnbull14 in 1976, the Court of Appeal laid down the famous ‘Turnbull guidelines’
on judicial warnings to the jury about visual identification evidence.15 The following are
the main considerations pertaining to Turnbull warnings.

2.1  When Should a Warning Be Administered?

A warning is required whenever the prosecution case
• depends wholly or substantially on
• the correctness of one or more identifications of the accused
• which the defence alleges to be mistaken.16
It is not necessary that the trial judge recite the actual words used in Turnbull; ‘it is the
substance of the warning which matters’.17 Thus ‘the Turnbull principles do not impose a
fixed formula for adoption in every case, and it will suffice if the judge’s directions comply
with the sense and spirit of the guidelines. The provision of a sufficient direction in cases
which depend on identification evidence is nevertheless an essential principle’.18

2.2  The Content of a Warning

A warning should comprise three elements. The jury should first be warned
of the special need for caution before convicting the accused in reliance on the correct-
ness of the identification or identifications. . . . [The judge] should instruct them as to the
reason for the need for such a warning and should make some reference to the possibility
that a mistaken witness can be a convincing one and that a number of such witnesses can
all be mistaken. Provided this is done in clear terms the judge need not use any particular
form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in
which the identification by each witness came to be made. How long did the witness have
the accused under observation? At what distance? In what light? Was the observation
impeded in any way, as for example by passing traffic or a press of people? Had the witness
ever seen the accused before? How often? If only occasionally, had he any special reason
for remembering the accused? How long elapsed between the original observation and the
subsequent identification to the police? Was there any material discrepancy between the

14 
[1977] QB 224.
15  For
interesting anecdotal evidence about the influence on juries of strong judicial warnings about
identification evidence, see E Crowther, ‘Return to Turnbull’ (1997) 161 Justice of the Peace 885. One
commentator is critical of the fact that ‘the carefully nuanced guidance to judges . . . has been turned into
hard-and-fast rules to be observed by police constables when gathering evidence’:  J R Lucas, ‘Turnbull
Turned Turtle’ [2011] 2 Archbold Review 5, 5. See, for an Australian perspective, I R Coyle, D Field, and
G Miller, ‘The Blindness of the Eye-witness’ (2008) 82 Australian Law Journal 471, and, for a comparative
perspective, M Bromby, M MacMillan, and P McKellar, ‘An Examination of Criminal Jury Directions in
Relation to Eyewitness Identification in Commonwealth Jurisdictions: Eye Witness Identifications and the
Practice of Jury Directions’ (2007) 36 Common Law World Review 303.
16  R v Turnbull [1977] QB 224, 228.
17  Ricketts v R [1998] 1 WLR 1016, 1023. See also R v Qadir [1998] Crim LR 828.
18  Langford v The State [2005] UKPC 20 at [22].
156
Identific ation E vidence

description of the accused given to the police by the witness when first seen by them and
his actual appearance? . . . [Thirdly and] finally, he should remind the jury of any specific
weaknesses which had appeared in the identification evidence.19
‘There may be cases where, in the light of the evidence that has unfolded, the jury should
be directed not to convict on the evidence of an identifying witness alone’, but there is no
general rule requiring such a direction.20
The requirement that the jury be reminded of specific weaknesses in the evidence is not
satisfied simply by inviting the jury to take into account what was said by defence counsel
about those weaknesses. What is required is that the judge ‘deal with the specific weak-
nesses in a coherent manner so that the cumulative impact of those specific weaknesses
is fairly placed before the jury’.21 A summary by the judge of the weaknesses is not neces-
sarily required.22 For example,
it may well be more convenient, especially in the course of a lengthy summing-up where
the evidence is reviewed in some detail . . ., to give specific reminders in relation to specific
parts of the evidence as they are dealt with in the course of the summing-up, rather than
to attempt any form of summary or shorthand which might itself be misleading either at
the beginning or the end of that detailed review.23
An important point to emphasize is that a Turnbull warning is required, as seen in Section
2.1, where the defence alleges the identification(s) to be mistaken. This is a challenge to
the accuracy of the identification (that is, an allegation that the identifying witness was
mistaken), and is to be distinguished from a defence challenge to the credibility of the
identifying witness. Thus, ‘in cases where the defence challenges the credibility of the
identifying witnesses as the principal or sole means of defence, there may be exceptional
cases where a Turnbull direction is unnecessary or where it is sufficient to give it more
briefly than in a case where the accuracy of identification is challenged’.24 It has been
emphasized, however, that only very rarely will credibility genuinely be the sole cause
for concern. Such an exceptional case may arise where, for example, the only challenge
is to credibility rather than to accuracy, and ‘the witness’s identification evidence is that
the accused was his workmate whom he has known for 20 years and that he was convers-
ing with him for half an hour face to face in the same room and the witness is sane and
sober’.25 Because of the danger that accuracy may be a cause for concern even though this
has not been raised by the defence,
the cases in which the warning can be entirely dispensed with must be wholly exceptional,
even where credibility is the sole line of defence. In the latter type of case the judge should
normally, and even in the exceptional case would be wise to, tell the jury in an appropriate
form to consider whether they are satisfied that the witness was not mistaken in view of
the danger of mistake . . .26
The courts would also appear to take the view that, even where the accuracy of identifica-
tion is at issue, something less than a full warning may suffice in certain circumstances.
A full warning would be of the utmost importance in a case where, for example, the only

19  R v Turnbull [1977] QB 224, 228.

20  R v Ley [2006] EWCA Crim 3063, [2007] 1 Cr App R 25 at [27].
21  R v Fergus (1993) 98 Cr App R 313, 318. See also R v El-Hannachi [1998] 2 Cr App R 226, 239.
22  R v Pattinson [1996] 1 Cr App R 51, 56; R v Qadir [1998] Crim LR 828.
23  R v Mussell, unrep, 27 Feb 1995, quoted in R v Pattinson [1996] 1 Cr App R 51, 56.
24  Shand v R [1996] 1 WLR 67, 72. See also Daley v R [1994] 1 AC 117, R v Cape [1996] 1 Cr App R 191, and

R v Macmath [1997] Crim LR 586 on the accuracy/credibility distinction.

25  Beckford v R (1993) 97 Cr App R 409, 415. 26  Shand v R [1996] 1 WLR 67, 72.
TURNBULL WARNINGS 157

identification evidence relied upon by the prosecution is contained in the statement of

a deceased person who claimed to have seen the defendants only fleetingly as they ran
away.27 In some circumstances, however, a simpler warning will suffice. Thus the distinc-
tion has been drawn between a case where the eyewitness glanced at the subject only fleet-
ingly, and a case where the eyewitness purportedly saw a familiar face over a considerable
period of time in perfectly good conditions. In the former case a full warning would be
required, while in the latter it would be unnecessary.28 But, although the identification
evidence in the latter case may be more reliable than in the former, the jury should nev-
ertheless be reminded that even close relatives and friends are sometimes misidentified.29
The extent to which a warning is required where the defendant admits his or her pres-
ence at or near the scene of the crime would be dependent upon the particular circum-
stances. If there is a possibility of mistaken identification then a warning is required.
This will be the case where, for example, there were two or more people present with
similarities in face, build, or clothing, with the consequence that one person could have
been mistaken for another.30 On the other hand,
purely by way of example, such a direction would not . . . generally be necessary if the
defendant admitted he was the only person present when the complainant received his
injuries, or if a woman and a man were present and the complainant said the man caused
his injuries, or if a black man and a white man were present and the complainant said the
white man caused the injuries, or if four men were present, three dressed in black and one
in white, and the complainant said the man in white caused his injuries. Of course, in all
but the first of those examples, an appropriate warning would need to be given if in a par-
ticular case, for example, the lighting was bad or there were other circumstances giving
rise to the possibility of mistake.31

2.3  Withdrawal of Case from Jury

A distinction is drawn by the Court of Appeal in Turnbull between identification evi-
dence of good quality and of bad quality. An example given of the former is evidence of
identification ‘made after a long period of observation, or in satisfactory conditions by a
relative, a neighbour, a close friend, a workmate and the like’.32 In R v El-Hannachi, the
Court of Appeal considered identification evidence resulting from the following circum-
stances to be of good quality:
Eve Robertson had watched a group of young men for some time within the public house
earlier in the evening. She had been in a good position to see the fight and, since she

27  Scott v R [1989] 1 AC 1242, 1260. 28  R v Bentley [1991] Crim LR 620.

29  R v Turnbull [1977] QB 224, 228. The Court of Appeal in R v Wait [1998] Crim LR 68 also emphasized
the need to give Turnbull warnings even in cases where the person identified had been recognized by the
witness rather than seen by him or her for the first time. Equally, the Privy Council remarked in Langford
v The State [2005] UKPC 20 at [24]: ‘Where . . . the identification depends upon the recognition by the wit-
ness of a person or persons previously known to him, the jury should be reminded that there is room for
mistake in such cases as well as in those which turn on the identification of a person thitherto unknown to
the identifying witness who is recollected by description. . . . the need in recognition cases for an appropriate
Turnbull direction is not diminished.’ Again, in Capron v The Queen [2006] UKPC 34, the Privy Council
held ‘that, even in a recognition case, the trial judge should always give an appropriate Turnbull direction
unless, despite any defence challenges, the nature of the eye witness evidence is such that the direction
would add nothing of substance to the judge’s other directions to the jury on how they should approach that
evidence’ ([2006] UKPC 34 at [16]).
30  R v Slater [1995] 1 Cr App R 584, 589. See also R v Thornton [1995] 1 Cr App R 578.
31  R v Slater [1995] 1 Cr App R 584, 590. 32  [1977] QB 224, 229.
158
Identific ation E vidence

knew the victims personally, she was likely to pay special attention to the attackers. The
evidence indicated that the attackers had walked away along East Acton Lane. This was
a long straight road with relatively high railings on each side. The lighting when the fight
occurred was good. The identification itself took place under a street light. Eve Robertson
looked carefully for quite a long time before she made her identification and when she did
she picked out only four of five people.33
The jury can safely be left to evaluate good-quality identification evidence even though
there is no other evidence to support it, so long as an adequate warning has been given
about the special need for caution. An example of poor-quality identification evidence is
evidence depending ‘solely on a fleeting glance or on a longer observation made in difficult
conditions’. Where the identification evidence is of poor quality, the judge should ‘with-
draw the case from the jury and direct an acquittal unless there is other evidence which
goes to support the correctness of the identification’. What is otherwise good-quality
identification evidence does not become poor-quality identification evidence on the basis
of the lack of credibility of the identifying witness, which is considered a matter for the
jury.34 Evidence will be deemed to be supporting evidence so long as ‘its effect is to make
the jury sure that there has been no mistaken identification’. Thus,
the trial judge should identify to the jury the evidence which he adjudges is capable of
supporting the evidence of identification. If there is any evidence or circumstances which
the jury might think was supporting when it did not have this quality, the judge should
say so. . . . 
Care should be taken by the judge when directing the jury about the support for an
identification which may be derived from the fact that they have rejected an alibi. False
alibis may be put forward for many reasons: an accused, for example, who has only his
own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to
support it out of fear that his own evidence will not be enough. Further, alibi witnesses can
make genuine mistakes about dates and occasions like any other witnesses can. It is only
when the jury is satisfied that the sole reason for the fabrication was to deceive them and
there is no other explanation for its being put forward can fabrication provide any support
for identification evidence. The jury should be reminded that proving the accused has told
lies about where he was at the material time does not by itself prove that he was where the
identifying witness says he was.35
The precise relationship between Turnbull warnings and the complete withdrawal of
the case from the jury (or the outright exclusion of the identification evidence) remains
unclear. We have seen that the Court of Appeal in Turnbull stated that the case should
be withdrawn from the jury, and an acquittal directed, if the identification evidence
is poor and there is no supporting evidence. The suggestion, therefore, is that ‘at some
point the adverse conditions for observation cannot be cured by a caution’. 36 Evidence
which depends solely on a fleeting glance, or on a longer observation made in difficult
conditions, is given by the Court in Turnbull as an example of poor identification evi-
dence. As has been noted, however, by Wilson J in the Canadian Supreme Court case
of Mezzo v R:
No one would take issue with the ‘fleeting glance’ test; it represents the extreme of frailty
which cannot be cured by a caution. The real difficulty is with ‘a longer observation made
in difficult conditions’. In this sense Turnbull is more significant for what it does not lay

33  [1998] 2 Cr App R 226, 237. 34  R v Macmath [1997] Crim LR 586.

35  R v Turnbull [1977] QB 224, 230. 36  Mezzo v R (1986) 30 DLR (4th) 161, 194 per Wilson J.
TURNBULL WARNINGS 159

down. If it sets out any principle with regard to the test for a directed verdict, it is the
principle that the quality of a witness’ identification is directly related to the extent of the
witness’ opportunity for observation. However, Turnbull offers no workable criteria for
determining when conditions are so difficult that an eyewitness’ testimony should not be
relied on . . .37

2.4  Appeals
What are the consequences on appeal of the failure to administer an adequate Turnbull
warning? A  difference would seem to have emerged between the views of the Privy
Council and the High Court of Australia on this matter. The Privy Council has appar-
ently taken the view that a conviction can stand so long as the appellate court considers
the quality of the identification evidence in question to be ‘exceptionally good’.38 The
Australian High Court, on the other hand, would appear to require that the appeal be
allowed unless the appellate court concludes that the jury must inevitably have convicted
the defendant on the basis of the other prosecution evidence in the case.39 This view would
seem rather more consistent with the protection of the defendant from the consequences
of possibly mistaken identifications.

2.5  Turnbull Appraised

There is no doubt that Turnbull represents a serious attempt by the judiciary to prevent
wrongful convictions arising from the admission of identification evidence. It is notable
that the approach prescribed in Turnbull had been recommended a year earlier in a report
on identification evidence in criminal cases.40 A few of the difficulties and uncertainties
associated with the Turnbull guidelines have already been referred to in Section 2.3. More
generally, it is to be noted that the entire approach is premised on the assumption that
juries will actually comprehend and take cognizance of the warnings administered by
trial judges. As has been observed: ‘It is all very well to tell a jury to be careful, and run
through a check list of considerations they should take into account, but a 10-minute lec-
ture on identification evidence does not make a juror an expert in assessing its probative
value.’41
Research conducted on this question in the United States, where instructions to the
jury on identification evidence are also employed, is illuminating. A model instruction is
provided in the major decision of the US Court of Appeals for the District of Columbia
Circuit in US v Telfaire.42 A number of empirical studies examining the effect of Telfaire
instructions on mock jurors have been conducted. These studies were analysed by Cutler
and Penrod and found to show that Telfaire instructions may well be of limited efficacy.
Cutler and Penrod conclude:
In summary, the experiments we have reviewed here provide little evidence that
judges’ instructions concerning the reliability of eyewitness identification enhance

(1986) 30 DLR (4th) 161, 194. See also R v Hay 2013 SCC 61, [2013] 3 SCR 694.
37 

Freemantle v R [1994] 1 WLR 1437; Shand v R [1996] 1 WLR 67.

38 
39  Domican v R (1992) 173 CLR 555.
40  Departmental Committee on Evidence of Identification in Criminal Cases, Report to the Secretary of

State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal
Cases (1976).
41  Editorial, ‘Identifying Problems with Identification’ (2004) 28 Criminal Law Journal 69, 69.
42  469 F 2d 552 (1972).
160
Identific ation E vidence

juror sensitivity to eyewitness identification evidence. Manipulations of timing and

content of the instructions did not improve the impact of the instructions. In a couple
of instances there was increased skepticism following instructions . . ., but the effect is
not systematic. And, there is no substantial evidence for enhanced sensitivity among
jurors who received Telfaire instructions in these studies . . . Rather, the evidence indi-
cates that the Telfaire instructions—perhaps because they confuse jurors—actually
reduced juror sensitivity to witnessing and identification conditions compared to
uninstructed jurors. Indeed, . . . careful scrutiny of these results—especially a com-
parison of conviction rates in good eyewitnessing conditions for uninstructed versus
instructed jurors . . .—will suggest that the defense should be especially eager to request
Telfaire instructions when an identification has been made under good witnessing
conditions!43
In any event, the extent to which the Turnbull guidelines have actually been complied
with by trial judges is also speculative. The Crown Court Study found that there was
‘fairly important’ or ‘very important’ identification evidence in close to about 25 per
cent of contested cases. Interestingly, Turnbull warnings were given in just over 50 per
cent of those cases in which there was ‘fairly important’ or ‘very important’ identifica-
tion evidence.44

2.6  Evidence of Description

The requirement for a Turnbull warning does not apply where the evidence in question is
‘evidence of description’ rather than identification evidence. The Court of Appeal noted
in R v Gayle that there is a
qualitative difference between identification evidence and what the judge called ‘evidence
of description’. The special need for caution before conviction on identification evidence
is because, as experience has often shown, it is possible for an honest witness to make a
mistaken identification. But the danger of an honest witness being mistaken as to distinc-
tive clothing, or the general description of the person he saw (short or tall, black or white,
etc, or the direction in which he was going) are minimal. So the jury can concentrate on
the honesty of the witness, in the ordinary way.45
Thus, the requirement for a Turnbull warning applies only where a witness purports
to be able to identify the defendant. Where, as in Gayle, the witness is able to describe
the perpetrator’s clothes but expressly states that he would not be able to recognize
him, there is clearly no identification and hence no requirement for caution before
relying upon an identification. For the same reasons, the police are under no duty to
hold a formal identification procedure unless a witness has purported to identify the
suspect or there is an available witness who might reasonably be expected to identify
the suspect.46

43  B L Cutler and S D Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995) 263.
44 M Zander and P Henderson, The Royal Commission on Criminal Justice:  Crown Court Study
(1993) 92–3.
45  [1999] 2 Cr App R 130, 135. See also R v Doldur, The Times, 7 Dec 1999; R v Hassan [2004] EWCA

Crim 1478.
46  Code D, para 3.12.
Discre tionary E xclusion of Identific ation E vidence 161

2.7  Voice Identification

There has been increasing recognition of the potential dangers of voice identification.47
As the Court of Appeal has acknowledged:
research shows that voice identification is more difficult than visual identification. Voice
identification is more likely to be wrong than visual identification. Nevertheless, by the
use of mock jurors researchers have shown that ordinary people show themselves to
be as willing to rely on identification by ear witnesses as they are on identification by
eyewitnesses.48
Thus in cases of voice identification a modified Turnbull warning would be required:
a judge should tailor his directions to the jury on the lines indicated . . . in respect of
visual recognition or identification, but tailored for the purposes of voice identification
or recognition. The judge should follow, suitably adapted, the guidelines laid down in R
v Turnbull . . . and the cases which have followed. Above all, it is vital that a judge should
spell out to the jury the risk of a mistaken identification, the reason why a witness
may be mistaken, pointing out that a truthful witness may yet be a mistaken witness,
and dealing with the particular strengths and weaknesses of the identification in the
instant case.49

3  Discretionary Exclusion of Identification Evidence

It is considered unjust to ask a witness to identify a defendant for the first time in
court because of the inherent likelihood that any witness asked to do this would
point to the single person occupying the dock. Accordingly, Code D of the Codes of
Practice issued under the Police and Criminal Evidence Act 1984 lays down detailed
procedures to be followed for the pre-trial identification of suspects. 50 The evidence
of the pre-trial identification would then be admitted at trial to support the in-court
identification of the defendant. In trials on indictment a ‘dock identification’ is
strictly admissible in evidence, 51 but any attempt by the prosecution to rely on such
a tactic would invite a defence application to exclude the identification evidence on
grounds of unfairness under section 78 of the Police and Criminal Evidence Act 1984.
The Crown Court is likely to admit evidence of dock identifications only exception-
ally, for instance where a defendant has refused to take part in any identification

47  See generally R Bull and B Clifford, ‘Earwitness Testimony’ (1999) 149 New Law Journal 216; R Bull

and B Clifford, ‘Earwitness Testimony’ in A  Heaton-Armstrong, E Shepherd, and D Wolchover (eds),

Analysing Witness Testimony: A Guide for Legal Practitioners and Other Professionals (1999).
48  R v Roberts [2000] Crim LR 183 (transcript from Smith Bernal).
49  R v Hersey [1998] Crim LR 281 (transcript from Smith Bernal). See also R v Gummerson [1999] Crim

LR 680; R v Roberts [2000] Crim LR 183; R v Chenia [2002] EWCA Crim 2345, [2003] 2 Cr App R 6; Phipps v
DPP [2012] UKPC 24. See generally D C Ormerod, ‘Sounds Familiar? Voice Identification Evidence’ [2001]
Criminal Law Review 595.
50 See generally T Valentine, ‘Forensic Facial Identification’ in A  Heaton-Armstrong, E Shepherd,

G Gudjonsson, and D Wolchover (eds), Witness Testimony:  Psychological, Investigative and Evidential
Perspectives (2006); D Wolchover and A Heaton-Armstrong, ‘Improving Visual Identification Procedures
under PACE Code D’ in A Heaton-Armstrong, E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness
Testimony: Psychological, Investigative and Evidential Perspectives (2006).
51  R v Reid [1994] Crim LR 442.
162
Identific ation E vidence

procedure. 52 A more liberal approach would appear to be taken in summary trials.

The Divisional Court has said of road traffic cases that
every day in a magistrates’ court those charged for instance with careless driv-
ing, who have made no statement to the police, are entitled to sit back and in the
absence of identification to submit that it has not been proven that they were the
driver. . . . To deal with that it has been customary . . . for a police officer or other
witnesses to be asked, ‘Do you see the driver in court,’ and for him to identify
the defendant. . . . If in every case where the defendant does not distinctly admit
driving there has to be an identification parade [or other pre-trial identification
procedure], the whole process of justice in a magistrates’ court would be severely
impaired. 53
Thus, in driving cases,
it is permissible to permit the prosecution to seek and rely upon a dock identifica-
tion of the accused . . . where there has been no prior notification that identity is an
issue. . . . It is not a breach of the Human Rights Act or Article 6 of the European
Convention for the court to expect, and in that sense require, an accused to indi-
cate prior to trial that identification as the driver is in issue. In the absence of such
prior indication, it is fair to permit the prosecution to seek and rely on a dock iden-
tification of the accused as the driver for the purpose . . . of preventing an unmer-
itorious, purely formal objection being taken to the prosecution case and an
unmeritorious submission of no case to answer being made at the close of the prosecution
evidence. 54

3.1  Formal Identification Procedures and Circumstances

in which they Should Be Used
Three categories of cases are distinguished in Code D.

3.1.1  Cases where the Suspect’s Identity Is not Known

‘In cases when the suspect’s identity is not known, a witness may be taken to a particular
neighbourhood or place to see whether they can identify the person they saw on a previ-
ous occasion.’55 The witness may ‘be shown photographs, computerised or artist’s com-
posite likenesses or similar likenesses or pictures (including “E-fit” images)’, but this must
be done in accordance with Annex E.56

3.1.2  Cases where the Suspect Is Known and Available

A suspect is ‘known’ if ‘there is sufficient information known to the police to justify the
arrest of a particular person for suspected involvement in the offence’. The suspect is
‘available’ if he or she is immediately available to, or will within a reasonably short time
be available to, and is willing to, take an effective part in at least one of the following

52  R v John [1973] Crim LR 113. A more permissive approach prevails in Scotland: Holland v Her Majesty’s

Advocate [2005] UKPC D1, 2005 SLT 563, [2005] HRLR 25. See generally P Tain, ‘In the Dock’ (2005) 149
Solicitors’ Journal 739.
53  Barnes v Chief Constable of Durham [1997] 2 Cr App R 505, 512.
54  Karia v DPP [2002] EWHC 2175 (Admin), (2002) 166 JP 753 at [40].
55  Code D, para 3.2. See generally A Roberts, J P Davis, T Valentine, and A Memon, ‘Should We Be

Concerned about Street Identifications?’ [2014] Criminal Law Review 633; D Wolchover, ‘Ending the Farce
of Staged Street Identifications’ [2004] 3 Archbold News 5.
56  Code D, para 3.3.
Discre tionary E xclusion of Identific ation E vidence 163

three identification procedures which it is practicable to arrange: video identification;

identification parade; group identification.57
Where
the suspect disputes being the person the witness claims to have seen, an identifica-
tion procedure shall be held unless it is not practicable or it would serve no useful
purpose in proving or disproving whether the suspect was involved in committing
the offence, for example . . . when it is not disputed that the suspect is already known
to the witness who claims to have recognised them when seeing them commit the
crime. 58
If an identification procedure is to be held, the suspect is to be initially offered a video
identification unless59
• ‘a video identification is not practicable’ or
• ‘an identification parade is both practicable and more suitable than a video
identification’ or
• ‘the officer in charge of the investigation considers [a group identification] more
suitable than a video identification or an identification parade and the identification
officer considers it practicable to arrange’.60 In this event a group identification may
initially be offered.
A video identification involves the witness being ‘shown moving images of a known sus-
pect, together with similar images of others who resemble the suspect’.61 ‘Video identifi-
cations must be carried out in accordance with Annex A.’62
An identification parade takes place ‘when the witness sees the suspect in a line of oth-
ers who resemble the suspect’.63 ‘Identification parades must be carried out in accordance
with Annex B.’64
A group identification takes place ‘when the witness sees the suspect in an infor-
mal group of people’.65 ‘Group identifications must be carried out in accordance with
Annex C.’66

3.1.3  Cases where the Suspect Is Known but not Available

Where a known suspect is not available, ‘the identification officer may make arrange-
ments for a video identification . . . If necessary, the identification officer may follow
the video identification procedures but using still images. Any suitable moving or still
images may be used and these may be obtained covertly if necessary. Alternatively, the
identification officer may make arrangements for a group identification.’67 If no other
identification procedure is practicable, the identification officer may arrange for the
suspect to be confronted by the witness. ‘A confrontation does not require the suspect’s
consent. Confrontations must be carried out in accordance with Annex D.’68

57  Code D, para 3.4.

58  Code D, para 3.12. See also P Bogan, ‘Forbes Alive and Well’ [2003] 9 Archbold News 5; A Roberts,
‘Questions of “Who Was There?” and “Who Did What?”: The Application of Code D in Cases of Dispute
as to Participation but not Presence’ [2003] Criminal Law Review 709; D Wolchover, ‘Farewell to Forbes’
[2003] 7 Archbold News 4.
59  Code D, para 3.14. 60  Code D, para 3.16. 61  Code D, para 3.5.
62  Code D, para 3.6 (italics in original). 63  Code D, para 3.7.
64  Code D, para 3.8 (italics in original). 65  Code D, para 3.9.
66  Code D, para 3.10 (italics in original). 67  Code D, para 3.21 (bold in original).
68  Code D, para 3.23.
164
Identific ation E vidence

3.2  Exclusion for Breaches of Code D

Code D seeks, then, to provide for the detailed regulation of identification procedures for
two main purposes: to optimize the reliability of identification evidence and to enforce
procedural rights for the suspect. Reliability is protected by a number of rules preventing
contamination—for instance, witnesses should not be shown photographs of the suspect
prior to the procedure, investigating officers cannot be present, and witnesses may not
view parades or videos in the company of other witnesses. The suspect is granted rights
to have his or her legal representative present, to object to other members of a parade or
video line-up, and to pick his or her own place in any line-up.
Like breaches of Code C in the context of confession evidence, breaches of Code D
may constitute one factor for consideration in determining whether identification evi-
dence should be excluded in the exercise of discretion under section 78(1). As the Court
of Appeal remarked:
At a trial, the trial judge has to consider any question of compliance with the Code in
deciding the question of fairness under section 78. But it is not a simple relationship
between a question of compliance and the question of fairness. Even where the Code has
been complied with, a proper exercise of the discretion under section 78, or the related
inherent discretion that the judge has in relation to prejudicial or inherently unreli-
able evidence, may require the judge to rule that the evidence should not be admitted.
Compliance with the Code is a factor but it is not the only factor, nor is it a decisive factor.
Similarly non-compliance with the Code is not decisive. It is again only a factor, maybe a
cogent factor, in the decision to admit or exclude evidence.69
The reliability of the identification evidence in question is obviously an important
consideration. ‘The overall purpose [of Code D] is one of adopting fair identification
practices and adducing reliable identification evidence. Where insufficient regard is had
to these purposes the discretion to exclude evidence under section 78 is likely to be
exercised’.70 Thus, in one case, the fact that a street identification was used in preference
to the ‘much better form of procedure’ of an identification parade weighed in favour of
exclusion.71 On the other hand, the Court of Appeal did not consider exclusion to have
been required in a case where ‘there were a number of other sources of evidence which
went to confirm, in greater or lesser degree, the identification of the appellant as the
offender’.72
It would appear, however, that bad faith on the part of the police is also a relevant fac-
tor. In R v Nagah the police deliberately engineered matters so that the defendant, despite
having agreed to appear on an identification parade, was released from the police station
in order that the complainant could identify him in the street. The Court of Appeal con-
sidered exclusion to be justified in these circumstances. ‘It would drive a coach and horses
through [the provisions in Code D] if all the police had to do was to say: “Well we are now
going to release you and then you can be made the subject of a street identification outside

69  R v Popat [1998] 2 Cr App R 208, 212–13. See also R v Kelly (1998) 162 JP 231; R v El-Hannachi [1998]

2 Cr App R 226, 232.
70  R v Popat [1998] 2 Cr App R 208, 224. 71  R v Nagah (1990) 92 Cr App R 344.
72  R v Tiplady (1995) 159 JP 548, 554. See also R v McEvoy [1997] Crim LR 887; D v DPP, The Times, 7 Aug

1998 (a witness informally identified suspects by reference to clothing and approximate ages; the suspect
requested but was not given an opportunity to participate in an identification parade, in breach of a previ-
ous version of Code D; it was held that exclusion of the evidence of informal identification under s 78 had
not been required because the breach was not of such substance, having regard to the nature and quality
of the identification evidence, for the court to conclude that by the admission of the evidence any unjust
prejudice had been caused to the defendant).
Discre tionary E xclusion of Identific ation E vidence 165

the police station.”’73 On the other hand, a good-faith breach by Trading Standards offic-
ers who did not appreciate that the Code applied to their activities was tolerated in R v
Tiplady.74
It would seem that, even if breaches of Code D may not justify the exclusion of identi-
fication evidence in the circumstances of a particular case, they may require appropriate
warnings to be given to the jury. The House of Lords has authoritatively held:
In any case where a breach of Code D has been established but the trial judge has
rejected an application to exclude evidence to which the defence objected because of
that breach, the trial judge should in the course of summing up to the jury (a) explain
that there has been a breach of the Code and how it has arisen, and (b) invite the jury
to consider the possible effect of that breach. . . . The terms of the appropriate direction
will vary from case to case and breach to breach. But if the breach is a failure to hold
an identification parade when required . . ., the jury should ordinarily be told that an
identification parade enables a suspect to put the reliability of an eye-witness’s identi-
fication to the test, that the suspect has lost the benefit of that safeguard and that the
jury should take account of that fact in its assessment of the whole case, giving it such
weight as it thinks fair.75
For example, in R v Quinn,76 the Court of Appeal held that, although the trial judge had
been entitled to admit the evidence, he ought, in view of the centrality of that evidence
and the criticisms which had properly been made about the breaches, to have made a spe-
cific reference to the breaches and left it to the jury to consider what their approach should
be in the light of the breaches.77 Conversely, the fact that such a direction was given by the
trial judge has been used by the Court of Appeal as a reason for not allowing an appeal
against conviction.78
The decision of the House of Lords in R v Forbes79 provides a good illustration of the
application of the above principles. At issue was the failure to hold an identification
parade, in breach of a previous version of Code D. The question was whether evidence of
the street identification of the defendant could be admitted. The House of Lords confirmed
that the breach of Code D did not require the exclusion of the evidence under section 78,
agreeing with the conclusion of the Court of Appeal that
the evidence was compelling and untainted, and was supported by the evidence (which it
was open to the jury to accept) of what the appellant had said at the scene. It did not suf-
fer from such problems or weaknesses as sometimes attend evidence of this kind: as, for
example, where the suspect is already visibly in the hands of the police at the moment he
is identified to them by the complainant.80
The House of Lords accepted that there had been a failure to give an appropriate direction
to the jury on the breach and its consequences, but upheld the conviction on the basis that
a reasonable jury, properly directed, would have reached the same conclusion.81
Clearly, the relationship between exclusion and warnings in the context of Code D vio-
lations now requires to be properly clarified. Otherwise, there is a danger that warnings

73  (1990) 92 Cr App R 344, 348. 74  (1995) 159 JP 548.

75  R v Forbes [2001] 1 AC 473 at [27]. 76  [1995] 1 Cr App R 480.
77  See also R v Macmath [1997] Crim LR 586; R v Wait [1998] Crim LR 68; R v Popat [1998] 2 Cr App R

208; R v El-Hannachi [1998] 2 Cr App R 226; R v Bell [1998] Crim LR 879.

78 eg, R v Khan [1997] Crim LR 584; R v McEvoy [1997] Crim LR 887; R v Kelly (1998) 162 JP 231.
79  [2001] 1 AC 473. See generally D O’Brien, ‘When Is an Identification Parade Mandatory?: R v Forbes’

(2001) 5 International Journal of Evidence and Proof 127.

80  [2001] 1 AC 473 at [26], quoting [1999] 2 Cr App R 501, 517. 81  [2001] 1 AC 473 at [28].
166
Identific ation E vidence

will come to be regarded as an adequate judicial response to such violations even in those
cases where nothing less than outright exclusion is warranted. One commentator has
succinctly observed that
the jury might be considered a less dependable means of safeguarding the fairness of the
proceedings, being ill-equipped . . . to take an informed and objective view of the sort of
breach which should not be tolerated. Furthermore, their findings on the matter are never
explicitly stated, and so provide no guidance for the future either to legal practitioners or
to senior police officers who seek to set appropriate standards within the police force.82
Perhaps the way forward would be to move away from the present approach of relying
solely on discretionary exclusion and discretionary warnings as a response to Code D vio-
lations. In particular, consideration could be given to adoption of an approach analogous
to that taken in relation to confession evidence in section 76 of the Police and Criminal
Evidence Act 1984. Thus, it may be possible to identify procedures in Code D which are of
such fundamental importance that it should be provided in a statute that non-compliance
with these procedures must lead automatically to the exclusion of any resulting identifi-
cation evidence (with the present approach of relying upon discretionary exclusion and
discretionary warnings—accompanied, perhaps, by a clearer indication from the courts
of the precise relationship between these measures—continuing in relation to other
breaches of Code D). Alternatively, an approach along the lines of that provided by the
Evidence Act 2006 of New Zealand may be appropriate. Section 45(2) of the Act states:
If a formal procedure is not followed by officers of an enforcement agency in obtaining
visual identification evidence of a person alleged to have committed an offence and there
was no good reason for not following a formal procedure, that evidence is inadmissi-
ble in a criminal proceeding unless the prosecution proves beyond reasonable doubt
that the circumstances in which the identification was made have produced a reliable
identification.83

4  Photographs and Video Recordings

It is accepted practice for incriminating photographs or video recordings of the offender
to be shown to the jury, and for the jury effectively to be asked whether it can ‘identify’ the
defendant as the offender from the photograph or recording.84 In recent times the use of
video surveillance cameras in public places has, as is well known, become commonplace.
Research has shown, however, that identification of persons from video recordings (even
good-quality recordings) may be less reliable than it is thought to be.85 What, then, has
been the response of the law of evidence? In the context of a discussion of photographs,
the Court of Appeal in R v Dodson held that

82  Commentary by D J Birch on R v Khan [1997] Crim LR 584, 586.

83  See also A Roberts, ‘Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures’
(2008) 71 Modern Law Review 331; A Roberts, ‘The Problem of Mistaken Identification: Some Observations
on Process’ (2004) 8 International Journal of Evidence and Proof 100. For the US position, see Perry v New
Hampshire 132 S Ct 716 (2012) (and, generally, R Couch, ‘A Model for Fixing Identification Evidence after
Perry v New Hampshire’ (2013) 111 Michigan Law Review 1535; ‘Suggestive Eyewitness Identifications’
(2012) 126 Harvard Law Review 246).
84  See generally D W Elliott, ‘Video Tape Evidence: The Risk of Over-Persuasion’ [1998] Criminal Law

Review 159.
85  J Laurance, ‘Security Cameras “Distorting Justice”’, The Independent, 27 Mar 1998, 10; K Worsley,

‘Close-Circuit Cameras Short-Circuit Justice’, The Times Higher Education Supplement, 27 Mar 1998, 23.
Photogr aphs and Video Recordings 167

it is . . . imperative that a jury is warned by a judge in summing up of the perils of deciding

whether by this means alone or with some form of supporting evidence a defendant has
committed the crime alleged. According to the quality of photographs, change of appear-
ance in a defendant and other considerations which may arise in a trial, the jury’s task may
be rendered difficult or simple in bringing about a decision either in favour of or against a
defendant. So long as the jury having been brought face to face with these perils are firmly
directed that to convict they must be sure that the man in the dock is the man in the pho-
tograph, we envisage no injustice arising from this manner of evaluating evidence with
the aid of what the jurors’ eyes tell them is a fact which they are sure exists.
. . . What are the perils which the jury should be told to beware of? . . . We do not think
the provision by us of a formula or series of guidelines upon which a direction by a judge
upon this matter should always be based would be helpful. . . . What is of the utmost impor-
tance . . ., it seems to us, is that the quality of the photographs, the extent of the exposure of
the facial features of the person photographed, evidence, or the absence of it, of a change in
a defendant’s appearance and the opportunity a jury has to look at a defendant in the dock
and over what period of time are factors, among other matters of relevance in this context
in a particular case, which the jury must receive guidance upon from the judge when he
directs them as to how they should approach the task of resolving this crucial issue.86
In the subsequent case of R v Blenkinsop, however, the Court explained that, while ‘there
is . . . a general and invariable requirement that the jury shall be warned of the risk of
mistaken identification, and of the need to exercise particular care in any identification
which they make for themselves’, what is required is not a full Turnbull warning. ‘The pro-
cess of identifying a person from a photographic image is a commonplace and everyday
event—. . . it is done on innumerable social and domestic occasions.’87 Thus,
one factor which the jury must take into account is the question whether the appearance
of the defendant has changed, or not, since the visual recording was made, and in general
terms this is something which should be brought to their attention. In other respects,
the Turnbull direction is inappropriate or unnecessary; for example, the jury does not
need to be told that the photograph is of good quality or poor; nor whether the person
alleged to have been the defendant is shown in close-up or was distant from the camera,
or was alone or part of a crowd. Some things are obvious from the photograph itself, and
Dodson and Williams laid down guidelines which do not have to be applied rigidly in
every case . . .88
The Court of Appeal has held that a non-testifying defendant cannot be required to stand
up and turn around so that the jury can have a better view of him or her.89 It would seem,
however, that there is no objection in principle to the admissibility of evidence aimed
at interpreting what the jury can see on a film, or purporting to identify actors on the
film. Thus it was held in R v Clare that evidence of a police constable could be adduced in
order to help the jury to pick out significant events from a very chaotic video recording
of a large-scale disturbance outside a football ground. The constable in question was an
‘expert ad hoc’ in the sense that he had special knowledge which the court did not possess.
This knowledge had been acquired by lengthy and studious examination of the recording,
which was itself admissible as evidence. The Court noted that
to afford the jury the time and facilities to conduct the same research would be utterly
impracticable. Accordingly, it was in our judgment legitimate to allow the officer to assist

86  [1984] 1 WLR 971, 979. 87  [1995] 1 Cr App R 7, 12.

88  [1995] 1 Cr App R 7, 11. See also R v Downey [1995] 1 Cr App R 547; R v Najjar [2014] EWCA Crim 1309.
89  R v McNamara [1996] Crim LR 750.
168
Identific ation E vidence

the jury by pointing to what he asserted was happening in the crowded scenes on the film.
He was open to cross-examination, and the jury, after proper direction and warnings,
were free either to accept or reject his assertions. . . . 
. . . If admitting evidence of this kind seems unfamiliar and an extension of established
evidential practice, the answer must be that as technology develops, evidential practice
will need to be evolved to accommodate it. Whilst the Courts must be vigilant to ensure
that no unfairness results, they should not block steps which enable the jury to gain full
assistance from the technology.90
A video recording played in court may be the original or an authentic copy.91 Where,
however, a copy of the recording is no longer available, a person who viewed the record-
ing may give evidence of what he or she saw on the recording. If the identification of
the defendant depends wholly on this evidence, then a Turnbull warning would be
required.92
Summarizing the legal position on photographic images, the Court of Appeal held in
A-G’s Reference (No 2 of 2002) that
there are . . . at least four circumstances in which, subject to the judicial discretion to
exclude, evidence is admissible to show and, subject to appropriate directions in the sum-
ming-up, a jury can be invited to conclude that the defendant committed the offence on
the basis of a photographic image from the scene of the crime:
(i) where the photographic image is sufficiently clear, the jury can compare it with the
defendant sitting in the dock . . .;
(ii) where a witness knows the defendant sufficiently well to recognise him as the
offender depicted in the photographic image, he can give evidence of this . . .; and
this may be so even if the photographic image is no longer available for the jury . . .;
(iii) where a witness who does not know the defendant spends substantial time view-
ing and analysing photographic images from the scene, thereby acquiring special
knowledge which the jury does not have, he can give evidence of identification
based on a comparison between those images and a reasonably contemporary
photograph of the defendant, provided that the images and the photograph are
available to the jury . . .;
(iv) a suitably qualified expert with facial mapping skills can give opinion evi-
dence of identification based on a comparison between images from the scene,
(whether expertly enhanced or not) and a reasonably contemporary photograph
of the defendant, provided the images and the photograph are available for the
jury . . .93
In the light of an evaluation of the law in this area, Costigan offers the following
recommendations:
There is a basis for adopting a more exacting approach to the admissibility of iden-
tification from image evidence. This is particularly important given the limitations
of the following suggested safeguards against prejudice. It is submitted that wher-
ever such evidence is adduced, a mandatory direction be given along the lines of
Dodson, taking account of developments in knowledge. It is strongly recommended

90  [1995] 2 Cr App R 333, 338–9. 91  Kajala v Noble (1982) 75 Cr App R 149.

92  Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479.
93  [2002] EWCA Crim 2373, [2003] 1 Cr App R 21 at [19]. On (iv), see generally M Bromby, ‘CCTV and

Expert Evidence: Addressing the Reliability of New Sciences’ [2006] 9 Archbold News 6.

Summary and Conclusion 169

that consideration be given to employing expert evidence on the inherent unreli-

ability of identification from images. As a minimum safeguard, juries should be
informed about the consistent findings in the psychology literature. Witnesses
should not be accorded the status of expert ad hoc on the basis of repeated viewing
of CCTV. Counsel have the responsibility of thoroughly establishing, and challeng-
ing, the reliability of identification from CCTV. In sum, it is to be hoped that a more
informed appreciation of the risks of identification from image evidence is developed
before such miscarriages of justice as have resulted from eyewitness testimony are
replayed.94
In R v Roberts the Court of Appeal, referring to the increased availability and use in crim-
inal trials of video recordings of the alleged commission of offences, considered whether
a video recording which comes to light after an eyewitness to the incident has already
given a statement to the police may be shown to that eyewitness. The Court provided the
following guidance:
Viewing the matter quite generally, it seems to us plain that the duty of any witness when
giving a statement is to describe the relevant events to the best of his or her honest recol-
lection and certainly not to invent or fabricate evidence to assist the prosecution or the
defence. If, after the giving of such a statement, a relevant video comes to light, it is not in
our judgment wrong in principle that the witness should be permitted to see that video.
On seeing it the witness may find that in some respects his or her recollection had been
at fault, and the witness may wish to correct or modify earlier evidence. It is however, in
our view, a matter of the utmost importance that nothing should be done which amounts
to rehearsing the evidence of a witness, or coaching the witness so as to encourage the
witness to alter the evidence originally given. The acid test is whether the procedure
adopted in any particular case is such as to taint the resulting evidence. It is, we would
stress, necessary to preserve equality of arms so that facilities are not made available to
the prosecution which are not made available to the defence. On the prosecution side we
see no reason to distinguish between police and non-police witnesses. They should be
treated the same.
The Court was also of the view that ‘the growing use of video evidence merits detailed
consideration of such evidence by the appropriate authorities with a view, after necessary
consultation, to devising a code of good practice’.95

5  Summary and Conclusion

We have seen that two main mechanisms for dealing with prosecution evidence of
identification of the defendant, a species of evidence notorious for its potential unre-
liability, have evolved in English law. The Turnbull guidelines on identification evi-
dence, which generally require warnings to the jury but also require the withdrawal
of the entire case from the jury in certain circumstances, provide an example of how
attempts by the law to strike an appropriate balance between trusting juries on the one
hand, and protecting the defendant on the other, can lead to complex results. Further

94  R Costigan, ‘Identification from CCTV: The Risk of Injustice’ [2007] Criminal Law Review 591, 607–8

(italics in original).
95  (1998) 162 JP 691, 694. For the position in South Africa see G Edmond and L Meintjes-Van der Walt,

‘Blind Justice? Forensic Science and the Use of Closed Circuit Television Images as Identification Evidence
in South Africa’ (2014) 131 South African Law Journal 109.
170
Identific ation E vidence

protection is provided by the possibility of the exclusion of identification evidence

for breaches of Code D. Such exclusion is dependent, however, upon the vagaries of
judicial discretion.

Further Reading
P Bogan and A Roberts, Identification: Investigation, Trial and Scientific Evidence (2nd ed
2011)
7
Investigatory Impropriety
Violations of the European Convention on
Human Rights and Undercover Police Operations

This chapter examines two further examples of the interplay between the principles of
evidence and pre-trial practices and procedures. The first part of the chapter consid-
ers the evidential consequences of pre-trial violations of the European Convention on
Human Rights, and the second part the implications of the use of undercover police
operations.

1  The Exclusion of Improperly Obtained Evidence

Consideration of the evidential consequences of violations of the European Convention on
Human Rights brings into sharp focus the possible rationales for the exclusion of improp-
erly obtained evidence.1 Academic commentators have identified a number of principles

1
  For general discussions of improperly obtained evidence see J Allan, ‘To Exclude or Not to Exclude
Improperly Obtained Evidence: Is a Humean Approach More Helpful?’ (1999) 18 University of Tasmania
Law Review 263; C J W Allen, ‘Discretion and Security: Excluding Evidence Under Section 78(1) of the Police
and Criminal Evidence Act 1984’ [1990] Cambridge Law Journal 80; A J Ashworth, ‘Excluding Evidence As
Protecting Rights’ [1977] Criminal Law Review 723; A  Ashworth, ‘The Exclusion of Evidence Obtained
by Violating a Fundamental Right:  Pragmatism before Principle in the Strasbourg Jurisprudence’ in P
Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural
Traditions (2012); T Carmody, ‘Recent and Proposed Statutory Reforms to the Common Law Exclusionary
Discretions’ (1997) 71 Australian Law Journal 119; A L-T Choo, ‘England and Wales: Fair Trial Analysis and
the Presumed Admissibility of Physical Evidence’ in S C Thaman (ed), Exclusionary Rules in Comparative
Law (2013); A L-T Choo, ‘Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited’ [1995]
Criminal Law Review 864; A L-T Choo and S Nash, ‘What’s the Matter with Section 78?’ [1999] Criminal
Law Review 929; G L Davies, ‘Exclusion of Evidence Illegally or Improperly Obtained’ (2002) 76 Australian
Law Journal 170; I H Dennis, ‘Reconstructing the Law of Criminal Evidence’ (1989) 42 Current Legal
Problems 21; B Fitzpatrick and N Taylor, ‘Human Rights and the Discretionary Exclusion of Evidence’
(2001) 65 Journal of Criminal Law 349; M A  Gelowitz, ‘Section 78 of the Police and Criminal Evidence
Act 1984: Middle Ground or No Man’s Land?’ (1990) 106 Law Quarterly Review 327; K Grevling, ‘Fairness
and the Exclusion of Evidence Under Section 78(1) of the Police and Criminal Evidence Act’ (1997) 113
Law Quarterly Review 667; D Ormerod, ‘ECHR and the Exclusion of Evidence: Trial Remedies for Article
8 Breaches’ [2003] Criminal Law Review 61; D Ormerod and D Birch, ‘The Evolution of the Discretionary
Exclusion of Evidence’ [2004] Criminal Law Review 767; D M Paciocco, ‘The Judicial Repeal of S 24(2) and
the Development of the Canadian Exclusionary Rule’ (1990) 32 Criminal Law Quarterly 326; P Roberts,
‘Excluding Evidence as Protecting Constitutional or Human Rights?’ in L Zedner and J V Roberts (eds),
Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (2012);
172
Inves tigatory Improprie t y

capable of explaining why it may be appropriate for an item of improperly obtained pros-
ecution evidence to be excluded.2 The more important of these are as follows. First, there is
the reliability principle: an item of improperly obtained evidence may be excluded because
of its questionable reliability. Secondly, the remedial principle sees exclusion as a remedy
provided to the defendant for the infringement of his or her rights by the police: an accused
person should be protected from the consequences of the infringement by being put in the
position in which he or she would have been had the infringement not occurred, which can
be achieved by excluding evidence obtained as a result of the infringement. Thirdly, the dis-
ciplinary principle sees exclusion as a means of deterring the police from future improprie-
ties by depriving them of the fruits of the transgression in question. Finally, the integrity
principle3 sees exclusion as a means of repudiating the impropriety and thus preserving the
purity of the court and of the criminal justice process generally. The court, whose duty is
to apply and uphold the law, must dissociate itself from the illegality or impropriety rather
than effectively to become complicit in the executive’s attempts to profit from it. A sec-
ondary concern of this principle may well be with the desire to be seen by the public to be
upholding values. More will be said about these principles later in the chapter.
Reference has already been made in previous chapters to section 78(1) of the Police and
Criminal Evidence Act 1984, which states:
In any proceedings the court may refuse to allow evidence on which the prosecution pro-
poses to rely to be given if it appears to the court that, having regard to all the circum-
stances, including the circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the proceedings that the
court ought not to admit it.4
Yet the extent to which the senior judiciary in England and Wales is willing to sanction
the use of section 78(1) to secure the exclusion of improperly obtained but reliable evi-
dence remains unclear, even after the introduction of the Human Rights Act 1998.

1.1  The Position Prior to the Human Rights Act 1998

Prior to the Police and Criminal Evidence Act 1984,5 the common law position—at least
as it appeared from the decision of the House of Lords in R v Sang6 —was effectively that

P Roberts, ‘Normative Evolution in Evidentiary Exclusion:  Coercion, Deception and the Right to a Fair
Trial’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law
Procedural Traditions (2012); A Samuels, ‘Illegally Obtained Evidence:  In or Out?’ (2003) 67 Journal of
Criminal Law 411; R Stone, ‘Exclusion of Evidence Under Section 78 of the Police and Criminal Evidence
Act: Practice and Principles’ in M J Allen (ed), Web Journal of Current Legal Issues Yearbook 1995 (1996);
S C Thaman, ‘Constitutional Rights in the Balance:  Modern Exclusionary Rules and the Toleration of
Police Lawlessness in the Search for Truth’ (2011) 61 University of Toronto Law Journal 691; A Ashworth
and M Redmayne, The Criminal Process (4th ed 2010) 11.3; P Mirfield, Silence, Confessions and Improperly
Obtained Evidence (1997); P Roberts and A Zuckerman, Criminal Evidence (2nd ed 2010) Ch 5; S Sharpe,
Judicial Discretion and Criminal Investigation (1998); S Sharpe, Search and Surveillance:  The Movement
from Evidence to Information (2000) Ch 6.
2  See especially A Ashworth and M Redmayne, The Criminal Process (4th ed 2010) 344 ff; P Mirfield,

Silence, Confessions and Improperly Obtained Evidence (1997) Ch 2.

3  See generally A Ashworth, ‘Exploring the Integrity Principle in Evidence and Procedure’ in P Mirfield

and R Smith (eds), Essays for Colin Tapper (2003).

4 Italics added.
5  I have drawn in this section on A L-T Choo and S Nash, ‘What’s the Matter with Section 78?’ [1999]

Criminal Law Review 929.

6  [1980] AC 402.
The E xclusion of Improperly Obtained E vidence 173

improperly obtained evidence could be excluded only in the exercise of the court’s dis-
cretion to ensure a ‘fair trial’, and in the exercise of this discretion such evidence could
be excluded only if the impropriety affected the reliability of the evidence or consti-
tuted an infringement of the accused’s right against self-incrimination. Evidence could
not be regarded as having been obtained in violation of the accused’s right against
self-incrimination unless it had been obtained from the accused after the offence. The
extent to which section 78(1) of the 1984 Act would affect the common law was initially
a matter of speculation. The ordinary principles of statutory interpretation, requiring
as they do a consideration of the plain meaning of the words of the provision, would
seem to have permitted courts to develop a fresh approach unencumbered by the com-
mon law: the reference to ‘the circumstances in which the evidence was obtained’ is a
general one which does not in any way imply that courts are restricted to a consideration
of circumstances which cast doubt on the reliability of the evidence obtained, or circum-
stances involving the obtaining of evidence from the accused after the offence.
Certainly, as discussed in Chapter 4, a number of landmark cases on confession evi-
dence in the late 1980s saw the Court of Appeal making strong statements about the
utility of section 78(1) in addressing the issue of breaches of the rules of police investiga-
tion. Although exclusion under section 78(1) must not be used directly to discipline the
police,7 ‘significant and substantial’ breaches would be taken seriously in the sense that
they would weigh heavily in favour of the exclusion of evidence obtained as a result of the
breaches.8 Also evident from the cases is the notion that a breach may, by its very nature,
be significant and substantial—in other words, it will be significant and substantial even
if the police acted in good faith—but that bad faith can effectively convert a breach which
is not otherwise significant and substantial into one which is.9
The cases provide instances of strongly worded judicial condemnations of improper
police practices. In R v Mason the Court of Appeal, in holding that the confession evi-
dence ought to have been excluded under section 78(1), described the police conduct as
‘most reprehensible’.10 In R v Samuel the Court stated: ‘In this case the appellant was
denied improperly one of the most important and fundamental rights of a citizen.’11
In R v Dunn the Court ‘stress[ed] yet again the importance of the police complying
strictly with the Codes of Practice. There were serious breaches in this case.’12 Again,
the breaches in R v Canale were described by the Court as ‘flagrant’, ‘deliberate’, and
‘cynical’;13 the police conduct ‘demonstrate[d]‌a lamentable attitude towards the 1984
Act and the codes made thereunder. . . . If, which we find it hard to believe, police officers
still do not appreciate the importance of that Act and the accompanying Codes, then it
is time that they did.’14
Unsurprisingly, the confessions cases gave rise to the expectation that section 78(1)
would also prove a useful vehicle for securing the exclusion of improperly obtained real
evidence. Certainly, initial indications were that this might well be the view taken by
the courts. In the early 1990s, decisions of the Divisional Court in road traffic prosecu-
tions appeared to advocate an approach in relation to evidence of breath specimens
which was analogous to that taken in relation to confession evidence.15 Thus an impro-
priety could be considered ‘significant and substantial’, and hence strong grounds for
exclusion under section 78(1), in the absence of bad faith on the part of the police, and

7  R v Mason [1988] 1 WLR 139; R v Delaney (1988) 88 Cr App R 338.

8  See, eg, R v Keenan [1990] 2 QB 54. 9  See, eg, R v Walsh (1989) 91 Cr App R 161.
10  [1988] 1 WLR 139, 144. 11  [1988] QB 615, 630. 12  (1990) 91 Cr App R 237, 243.
13  [1990] 2 All ER 187, 192. 14  [1990] 2 All ER 187, 190.
15  DPP v McGladrigan [1991] RTR 297; DPP v Godwin [1991] RTR 303. See also DPP v Kay [1999] RTR 109.
174
Inves tigatory Improprie t y

simply because it constituted a breach of an important right of the accused. In one case,
for example, the Court declined, despite the absence of bad faith, to interfere with the
justices’ decision to exclude evidence of a positive breath specimen provided after an
unlawful arrest:
The justices were entitled to conclude that the substantial breach by the constable [meant
that] the protection afforded to members of the public by section 6 [of the Road Traffic
Act 1988] was denied to the defendant, that as a result the prosecutor obtained evidence
which he would not otherwise have obtained, and that as a result the defendant was preju-
diced in a significant manner in resisting the charge against him.16
Finally, the 1990s saw a marked expansion of the doctrine of abuse of process.17 The House
of Lords confirmed in R v Horseferry Road Magistrates’ Court, ex p Bennett18 that crim­
inal proceedings could be stayed as an abuse of process on account of improper police or
prosecutorial conduct at the pre-trial stage.19 Thus, a stay would be appropriate if it was
shown that a defendant had been forcibly abducted and brought to the United Kingdom
to face trial in disregard of the extradition laws.20 The doctrine was refined by the House
of Lords in R v Latif; R v Shahzad.21
The willingness of the House of Lords to breathe life into the abuse of process doc-
trine may be viewed as an expression of its recognition that it is now completely outdated
to regard judicial responsibility as being confined to ensuring the non-conviction of an
innocent person. There are, as the House put it simply in Latif; Shahzad, ‘broader con-
siderations of the integrity of the criminal justice system’.22 Considerations of extrinsic
policy are as much a concern as considerations of intrinsic policy. Even if there is no dan-
ger of the conviction of an innocent person, a court has the duty to act if failure to do so
would compromise the legitimacy of the adjudicative process and the moral authority of a
guilty verdict if such a verdict were to ensue.23 It would therefore be anomalous if a court
were to be permitted to act by staying ‘tainted’ proceedings (a fairly drastic measure), but
were not to be permitted to act by simply excluding an item of ‘tainted’ evidence (a poten-
tially less drastic measure24).

16
  DPP v Godwin [1991] RTR 303, 308.
17
  See generally A L-T Choo, ‘Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited’
[1995] Criminal Law Review 864.
18  [1994] 1 AC 42.
19  For further discussion see C Gane and S Nash, ‘Illegal Extradition: The Irregular Return of Fugitive

Offenders’ (1996) 1 Scottish Law and Practice Quarterly 277.

20  See also R v Mullen [1999] 2 Cr App R 143, discussed at footnote 25. Cf R v Staines Magistrates’ Court,

ex p Westfallen [1998] 4 All ER 210; see generally S O’Doherty, ‘Home Thoughts from Abroad’ (1998) 148
New Law Journal 1802. The position in Scotland is discussed in P Arnell, ‘Male Captus Bene Detentus in
Scotland’ [2004] Juridical Review 251.
21 [1996] 1 WLR 104. See generally A Ashworth, ‘Should the Police Be Allowed to Use Deceptive

Practices?’ (1998) 114 Law Quarterly Review 108, 119–20; K Grevling, ‘Undercover Operations: Balancing
the Public Interest?’ (1996) 112 Law Quarterly Review 401; S Sharpe, ‘Judicial Discretion and Investigative
Impropriety’ (1997) 1(2) International Journal of Evidence and Proof 149.
22  [1996] 1 WLR 104, 112.
23  See, most recently, R v Maxwell [2010] UKSC 48, [2011] 1 WLR 1837; Warren v Attorney General for

Jersey [2011] UKPC 10, [2011] 3 WLR 464 (see generally S Hatt, ‘Abuse of Process—A Trio of Commonwealth
Cases’ [2011] Journal of Commonwealth Criminal Law 333; P O’Connor, ‘“Abuse of Process” after Warren
and Maxwell’ [2012] Criminal Law Review 672; J Rogers, ‘Abuse of Process Reconsidered’ [2011] 6 Archbold
News 6). See generally I H Dennis, The Law of Evidence (5th ed 2013) 51–62.
24  Of course, if the evidence were the only prosecution evidence, or perhaps a crucial part of the prose­

cution evidence, then its exclusion would be tantamount to a complete stay of the proceedings.
The E xclusion of Improperly Obtained E vidence 175

The Court of Appeal, too, has not been hesitant to embrace the abuse of process doc-
trine. In R v Mullen,25 the appellant was convicted of conspiracy to cause explosions and
sentenced to 30 years’ imprisonment. In the Court of Appeal it was argued that his trial
should not have proceeded, primarily on the basis that ‘the British authorities initiated
and subsequently assisted in and procured the deportation of the appellant, by unlaw-
ful means, in circumstances in which there were specific extradition facilities between
this country and Zimbabwe. In so acting they were not only encouraging unlawful con-
duct in Zimbabwe, but they were also acting in breach of public international law.’26 The
Court acknowledged that this was not a case in which there had been any danger of an
unfair trial:
it seems to us that Bennett-type abuse, where it would be offensive to justice and propriety
to try the defendant at all, is different . . . from the type of abuse which renders a fair trial
impossible . . . It arises not from the relationship between the prosecution and the defend-
ant, but from the relationship between the prosecution and the Court. It arises from the
Court’s need to exercise control over executive involvement in the whole prosecution pro-
cess, not limited to the trial itself.27
Significantly, the Court noted that ‘certainty of guilt cannot displace the essential feature
of this kind of abuse of process, namely the degradation of the lawful administration of
justice’.28 On the facts of the case:
This Court recognises the immense degree of public revulsion which has, quite properly,
attached to the activities of those who have assisted and furthered the violent operations
of the IRA and other terrorist organisations. In the discretionary exercise, great weight
must therefore be attached to the nature of the offence involved in this case. Against
that, however, the conduct of the security services and police in procuring the unlawful
deportation of the appellant in the manner which has been described, represents, in the
view of this Court, a blatant and extremely serious failure to adhere to the rule of law
with regard to the production of a defendant for prosecution in the English courts. The
need to discourage such conduct on the part of those who are responsible for criminal
prosecutions is a matter of public policy, to which . . . very considerable weight must be
attached.29
Consequently, the Court had ‘no doubt that the discretionary balance comes down
decisively against the prosecution of this offence’.30 Particularly notable is the acknowl-
edgement that the ‘balance’ came down in favour of a stay despite the seriousness of the
offence in question.
Some decisions of the Court of Appeal on improperly obtained evidence in the mid-
and late 1990s appeared, however, to signal a move away from the approach, taken in
the confessions cases already referred to, of focusing on the nature of the breach, and
towards an approach taking the nature of the evidence as its central consideration. The
fact that non-confession evidence is often of undoubted reliability was considered a
strong factor in favour of not exercising the exclusionary discretion. At issue in R v
Cooke, 31 a prosecution for rape and kidnapping, was evidence of a DNA profile obtained

25  [1999] 2 Cr App R 143. See generally L Davidson, ‘Quashing Convictions for Pre-Trial Abuse of

Process:  Breaching Public International Law and Human Rights’ [1999] Cambridge Law Journal 466;
C Warbrick, ‘Judicial Jurisdiction and Abuse of Process’ (2000) 49 International and Comparative Law
Quarterly 489.
26  [1999] 2 Cr App R 143, 156. 27  [1999] 2 Cr App R 143, 158.
28  [1999] 2 Cr App R 143, 155. 29  [1999] 2 Cr App R 143, 156–7.
30  [1999] 2 Cr App R 143, 157. 31  [1995] 1 Cr App R 318.
176
Inves tigatory Improprie t y

from hair roots and sheaths plucked from the accused’s head. The Court of Appeal
held that this evidence had not been obtained illegally, 32 but, even assuming that it had
been, the trial judge had not erred in declining to exclude it under section 78(1). The
Court noted 33 that ‘the vast majority of cases in which the court has ruled such evidence
inadmissible have been cases in which what was challenged was an alleged confession
obtained from the defendant in breach of one of the Police and Criminal Evidence Act
Codes of Practice’. In this case the DNA profile constituted very strong evidence that
Cooke had had sexual intercourse with the complainant. Any illegality involved in the
way in which the evidence was obtained would not have ‘in any way cast doubt upon
the accuracy or strength of the evidence. In this way evidence of this kind differs from,
for example, a disputed confession, where the truth of the confession may well itself be
in issue’.
In R v Chalkley,34 Chalkley and Jeffries were charged with conspiracy to commit rob-
bery. The prosecution proposed to adduce evidence of covertly obtained audio record-
ings of highly incriminating conversations between the defendants. The Regional Crime
Squad had obtained the necessary authorization, under the Home Office guidelines, to
place a listening device in Chalkley’s home.35 In order to install the device, they arrested
Chalkley in connection with crimes about which no action had previously been taken,
seized his house key, and used it to enter the house. They also arranged the cutting of a
copy of the key, which was later used on two occasions to enter the house to renew the
battery on the device. The Court of Appeal held that the arrest of Chalkley had not been
unlawful,36 but that even if it had been the trial judge’s decision not to exclude the evi-
dence under section 78(1) should stand. The Court suggested, in effect, that the discretion
to exclude evidence on the ground that it had been obtained improperly was applicable
only in relation to:
• evidence of a confession obtained from the accused; and
• other evidence obtained from the accused after the commission of the offence; and
• evidence obtained in an undercover police operation; and
• evidence the quality of which had been, or might have been, affected by the way in
which it had been obtained.
As for the evidence in this case,
there was no dispute as to its authenticity, content or effect; it was relevant, highly proba-
tive of the appellants’ involvement in the conspiracy and otherwise admissible; it did not
result from incitement, entrapment or inducement or any other conduct of that sort; and
none of the unlawful conduct of the police or other of their conduct of which complaint is
made affects the quality of the evidence.37
The Court referred to the decisions of the House of Lords in Ex p Bennett and Latif;
Shahzad, but took the view that section 78(1) could not be used to ‘exclude [evidence] as

32  Hair plucked from the scalp constituted a non-intimate sample under s 65 of the Police and Criminal

Evidence Act 1984, and could therefore be taken without consent under s 63(3).
33  [1995] 1 Cr App R 318, 328. 34  [1998] 2 All ER 155.
35  There were, at the time, no statutory provisions governing the authorization of entry on or interference

with property. See now Police Act 1997, Pt III, on which see generally M Colvin, ‘Part III Police Act 1997’
(1999) 149 New Law Journal 311; S Uglow and V Telford, The Police Act 1997 (1997) Ch 3.
36  ‘ . . . a collateral motive for an arrest on otherwise good and stated grounds does not necessarily make

it unlawful. It depends on the motive’: [1998] 2 All ER 155, 176.

37  [1998] 2 All ER 155, 180.
The E xclusion of Improperly Obtained E vidence 177

a mark of disapproval of the way in which it had been obtained’, since section 78(1) and
the abuse of process doctrine did not share the same juridical basis. ‘The determination of
the fairness or otherwise of admitting evidence under s 78 is distinct from the exercise of
discretion in determining whether to stay criminal proceedings as an abuse of process.’38
A balancing approach was accordingly not appropriate to a determination of whether
improperly obtained evidence should be excluded under section 78(1).
The decision in Chalkley was thus potentially far-reaching. It suggested that evidence
of the type in Chalkley, and real evidence not obtained from the accused, such as evi-
dence obtained as a result of a search, must be admitted if it was reliable; such evidence
could not be excluded on the ground that it was improperly obtained.39 Real evidence
obtained from the accused, on the other hand, was subject to discretionary exclusion,
although Cooke suggested that courts generally would not exclude such evidence, given its
inherent reliability. Such a narrow approach seems contrary to the plain meaning of the
words of section 78(1), discussed earlier. That Chalkley was not a mere aberration, how-
ever, is demonstrated by a subsequent decision where, in approving Chalkley, the Court
of Appeal held in very clear terms: ‘Here the quality of the evidence is simply unaffected
by the . . . illegality and in our judgment the decision under section 78 therefore had to go
in favour of the prosecution.’40
The tendency of the appellate courts immediately prior to the Human Rights Act
1998 was therefore to interpret section 78(1) narrowly, and in effect as being concerned
primarily with ensuring accurate fact-finding. The prevailing view appeared to be that
improperly obtained evidence should in general be excluded under section 78(1) only if its
reliability had been compromised by the manner in which it was obtained.

1.2  Violations of Article 8 and the Exclusion of Evidence:

The Contribution of the European Court of Human Rights
Article 8, which essentially guarantees the right to privacy, provides as follows:
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
There can be no doubt about the domestic courts’ views of the effect of the Human
Rights Act 1998 on the law pertaining to the exclusion of evidence obtained in viola-
tion of Article 8.41 The stance consistently maintained is that compliance with the right
to a fair trial guaranteed by Article 6 of the European Convention will be secured by

38  [1998] 2 All ER 155, 178.

39  Cf, however, R v Stewart [1995] Crim LR 499 and R v McCarthy [1996] Crim LR 818, in which the
Court of Appeal appeared to suggest that evidence obtained as a result of an illegal search was subject to
discretionary exclusion, although the discretion was unlikely to be exercised because of the inherent reli-
ability of such evidence.
40  R v Bray, unrep, CA, 31 July 1998 (italics added).
41  I have drawn in this section and in Section 1.3 on A L-T Choo and S Nash, ‘Evidence Law in England

and Wales:  The Impact of the Human Rights Act 1998’ (2003) 7 International Journal of Evidence and
Proof 31.
178
Inves tigatory Improprie t y

the appropriate use of section 78(1) of the Police and Criminal Evidence Act 1984. The
courts’ maintenance of this approach has been assisted in no small measure by the
May 2000 judgment of the European Court of Human Rights in Khan v UK.42 Having
failed in both the Court of Appeal43 and the House of Lords,44 Khan took his case to
Strasbourg. The essential facts were that, on being interviewed at a police station after
his arrival from Pakistan, Khan denied any offence and declined to answer most of the
questions put to him. He was released without charge. Some months later he visited the
home of a person whom the police suspected of involvement in the supply of heroin on a
large scale. As a result of these suspicions they had installed an aural surveillance device
on the exterior of the property, without the knowledge or consent of the owner or occu-
pier of the property. An audio recording was obtained of a conversation between Khan
and others in which Khan made statements plainly demonstrating his involvement
in the importation of heroin. The European Court of Human Rights observed: ‘There
was . . . no domestic law regulating the use of covert listening devices at the relevant
time. . . . It follows that the interference in the present case cannot be considered to be “in
accordance with the law”, as required by Article 8(2) of the Convention. Accordingly,
there has been a violation of Article 8.’45 On the issue of exclusion the Court commented
as follows:
With specific reference to the admission of the contested tape recording, the Court
notes that . . . the applicant had ample opportunity to challenge both the authenticity
and the use of the recording. He did not challenge its authenticity, but challenged its
use at the ‘voire dire’ and again before the Court of Appeal and the House of Lords. The
Court notes that at each level of jurisdiction the domestic courts assessed the effect
of admission of the evidence on the fairness of the trial by reference to section 78
of PACE . . . 
The Court would add that it is clear that, had the domestic courts been of the view that
the admission of the evidence would have given rise to substantive unfairness, they would
have had a discretion to exclude it under section 78 of PACE.
In these circumstances, the Court finds that the use at the applicant’s trial of the secretly
taped material did not conflict with the requirements of fairness guaranteed by Article
6(1) of the Convention.46
The fact that the evidence ‘was in effect the only evidence against the applicant’ was con-
sidered irrelevant in the circumstances of the case:
The relevance of the existence of evidence other than the contested matter depends on the
circumstances of the case. In the present circumstances, where the tape recording was
acknowledged to be very strong evidence, and where there was no risk of it being unreli-
able, the need for supporting evidence is correspondingly weaker.47

42 (2000) 31 EHRR 45. See generally S Nash, ‘Secretly Recorded Conversations and the European

Convention on Human Rights: Khan v UK’ (2000) 4 International Journal of Evidence and Proof 268; P
Tain, ‘Fair Trial and the ECHR’ (2000) 144 Solicitors’ Journal 590.
43 [1995] QB 27. 44  [1997] AC 558.
45  (2000) 31 EHRR 45 at [27]–[28]. See also Elahi v UK (2006) 44 EHRR 30. Note that there is now legal

regulation of covert surveillance in the Regulation of Investigatory Powers Act 2000. See Kennedy v UK
(2010) 52 EHRR 4 and, generally, R Esen, ‘Intercepting Communications “in Accordance with the Law”’
(2012) 76 Journal of Criminal Law 164.
46  (2000) 31 EHRR 45 at [38]–[40].
47  (2000) 31 EHRR 45 at [37]. See also PG v UK, Application no 44787/98, 25 Sept 2001; see generally

S Nash, ‘Balancing Convention Rights:  PG and JH v United Kingdom’ (2002) 6 International Journal of
Evidence and Proof 125.
The E xclusion of Improperly Obtained E vidence 179

In a strong dissent on the Article 6 issue, Judge Loucaides appeared to advocate the
mandatory exclusion of any evidence obtained in breach of the Convention. He was
unable to ‘accept that a trial can be “fair”, as required by Article 6, if a person’s guilt
for any offence is established through evidence obtained in breach of the human rights
guaranteed by the Convention’.48 He considered that there was ‘an obligation on the
United Kingdom courts not to admit or rely on evidence in judicial proceedings which
was obtained contrary to the Convention. This applies a fortiori in cases where such evi-
dence is the only evidence against an accused person in a criminal case like the present
one.’49 ‘Moreover, if it is accepted that the admission of evidence obtained in breach of
the Convention against an accused person is not necessarily a breach of the required
fairness under Article 6, then the effective protection of the rights under the Convention
will be frustrated.’50 ‘The exclusion of evidence obtained contrary to the protected right
to privacy should be considered as an essential corollary of the right, if such right is to
be of any value.’51
The later judgment of the European Court in Allan v UK52 is especially noteworthy,
bringing into sharp focus the respective approaches of the Court to different types of
evidence obtained in violation of Article 8. When Allan was in custody with one Leroy
Grant on suspicion of having committed a robbery, the police received information that
Allan had been involved in a murder. The Chief Constable accordingly granted author-
ity for the cell and visiting areas used by Allan and Grant to be fitted with audio and
video equipment. When Allan was subsequently arrested for the murder he exercised his
right to remain silent. However, recordings were made of Allan’s conversations (1) with
a friend, JNS, in the prison visiting area, (2) with Grant in the cell in which they were
held, and (3) with H, a police informant who was placed in Allan’s cell for the purpose of
eliciting information from him. He argued, inter alia, that the use of the evidence of these
recordings (which, together with the testimony of H, constituted the principal evidence
against him) violated Article 6(1).
The European Court was ‘not persuaded that the use of the taped material concerning
Leroy Grant and JNS at the applicant’s trial conflicted with the requirements of fairness
guaranteed by Art 6(1) of the Convention’:
the applicant’s counsel challenged the admissibility of the recordings in a voire dire,
and was able to put forward arguments to exclude the evidence as unreliable, unfair or
obtained in an oppressive manner. The judge in a careful ruling however admitted the
evidence, finding that it was of probative value and had not been shown to be so unreliable
that it could not be left to the jury to decide for themselves. This decision was reviewed on
appeal by the Court of Appeal which found that the judge had taken into account all the
relevant factors and that his ruling could not be faulted. At each step of the procedure, the

48  (2000) 31 EHRR 45 at [O-I4]. 49  (2000) 31 EHRR 45 at [O-I5].

50  (2000) 31 EHRR 45 at [O-I6].
51  (2000) 31 EHRR 45 at [O-I7]. The view of Judge Loucaides was endorsed by Judge Tulkens in her dis-

sent on the Art 6 issue in PG v UK, Application no 44787/98, 25 Sept 2001. In R v Button [2005] EWCA Crim
516 the Court of Appeal made its feelings on the issue clear: ‘What [counsel for the appellants] is saying is
that the court is bound to exclude any evidence obtained in breach of Article 8 because otherwise it would
be acting unlawfully. This is a startling proposition and one which we are pleased and relieved to be able to
reject.’ ([2005] EWCA Crim 516 at [24].) ‘The intrusion or interference has already occurred, the evidence
obtained is admissible under English law and so the court’s obligation is confined to deciding whether
or not, having regard to the way in which the evidence was obtained, it would be fair to admit it.’ ([2005]
EWCA Crim 516 at [23].)
52  (2002) 36 EHRR 12. See generally S Nash, ‘Surreptitious Interrogation and Notions of Fairness: Allan

v United Kingdom’ (2003) 7 International Journal of Evidence and Proof 137.

180
Inves tigatory Improprie t y

applicant had therefore been given an opportunity to challenge the reliability and signifi-
cance of the recording evidence.53
In relation to the conversations with H, however, there had been a violation of Article 6(1):
In contrast to the position in the Khan case, the admissions allegedly made by the
applicant to H, and which formed the main or decisive evidence against him at trial,
were not spontaneous and unprompted statements volunteered by the applicant, but
were induced by the persistent questioning of H, who, at the instance of the police,
channelled their conversations into discussions of the murder in circumstances which
can be regarded as the functional equivalent of interrogation, without any of the safe-
guards which would attach to a formal police interview, including the attendance of a
solicitor and the issuing of the usual caution. While it is true that there was no special
relationship between the applicant and H and that no factors of direct coercion have
been identified, the Court considers that the applicant would have been subject to psy-
chological pressures which impinged on the ‘voluntariness’ of the disclosures allegedly
made by the applicant to H: he was a suspect in a murder case, in detention and under
direct pressure from the police in interrogations about the murder, and would have been
susceptible to persuasion to take H, with whom he shared a cell for some weeks, into
his confidence. In those circumstances, the information gained by the use of H in this
way may be regarded as having been obtained in defiance of the will of the applicant
and its use at trial impinged on the applicant’s right to silence and privilege against
self-incrimination. 54
It is no surprise that the admission of evidence of undisputed reliability was considered
not to violate Article 6, while Article 6 was held to have been violated by the admission of
evidence of questionable reliability.
Consistently with its general approach, the European Court declared inadmissible
under Article 6(1) the application of Chalkley, whose appeal to the Court of Appeal was
discussed in Section 1.1. Relying on Khan v UK, the European Court held that the pro-
ceedings had not been unfair.55

1.3  Violations of Article 8 and the Exclusion of Evidence:

The Domestic Jurisprudence
A few illustrations from English case law of the courts’ approach to the exclusion of
improperly obtained evidence in the light of Articles 8 and 6 may now be provided. In a
decision on evidence of telephone intercepts, the House of Lords held, referring to Khan
v UK, that ‘the direct operation of [A]‌r ticles 8 and 6 does not . . . alter the vital role of
section 78 as the means by which questions of the use of evidence obtained in breach of
[A]rticle 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion
of fairness in [A]rticle 6 which is likewise the criterion to be applied by the judge under
section 78.’56
In R v Sanghera the search of the defendant’s premises had been conducted in breach
of what was then paragraph 1.3 (now 2.3) of Code B of the Codes of Practice in that his
consent to the search had not been obtained. The Court of Appeal held that appropriate
consideration of section 78(1) was sufficient to ensure compliance with the Convention.

53  (2002) 36 EHRR 12 at [48]. 54  (2002) 36 EHRR 12 at [52].

55  Chalkley v UK (Admissibility), Application no 63831/00, 26 Sept 2002.
56  R v P [2001] 2 WLR 463, 475. See also A-G’s Reference (No 3 of 1999) [2001] 2 WLR 56 (DNA evidence);

R v Sargent [2001] UKHL 54, [2001] 3 WLR 992.

The E xclusion of Improperly Obtained E vidence 181

The Court was of the view, however, that the trial judge had exercised his discretion
appropriately in not excluding the evidence:
It is important to note that . . . the appellant did not challenge the fact of the discovery of
the money. . . . There was no issue as to the reliability of the evidence. . . . 
In addition, there is the fact that there is no suggestion that the police were acting other
than bona fide. . . . 
. . . The money was in the box above the safe. . . . If the judge had acceded to the sub-
missions that were made to him, the result of the failure to obtain formal written con-
sent . . . would have had the consequence of interfering with the achievement of justice.57
Once again, the commitment to accurate fact-finding is immediately apparent.
In R v Loveridge, the Court of Appeal held the secret filming by police of defendants in
the cell area of a magistrates’ court to be in contravention of section 41 of the Criminal
Justice Act 1925 and a breach of Article 8.
However, so far as the outcome of this appeal is concerned, the breach of Article 8 is only
relevant if it interferes with the right of the applicants to a fair hearing. Giving full weight
to the breach of the Convention, we are satisfied that the contravention of Article 8 did not
interfere with the fairness of the hearing. The judge was entitled to rule as he did. The posi-
tion is the same so far as section 78 of the Police and Criminal Evidence Act 1984 is con-
cerned. We would here refer to the judgment of Swinton Thomas LJ in the case of Perry . . .58
The remarks of Swinton Thomas LJ in R v Perry,59 a decision on video identification evi-
dence obtained in consequence of breaches of Code D, probably represent the high-water
mark of judicial antagonism to the idea that the law on the exclusion of improperly
obtained evidence may be altered by the Human Rights Act 1998:
The purpose underlying the [Human Rights] Act is to protect citizens from a true abuse
of human rights. If, as it seems to us has happened in this case, it is utilised by lawyers to
jump on a bandwagon and to attempt to suggest that there has been a breach of the Act or
of the Convention when either it is quite plain that there has not or alternatively the matter
is amply covered by domestic law, then not only will the lawyers, but the Act itself (which
is capable of doing a great deal of good to the citizens of this country) will be brought
into disrepute. . . . In our judgment questions of breaches of the European Convention on
Human Rights or the Act should not have formed any part of this appeal. All the submis-
sions which have been made can properly and readily be dealt with under the provisions
of our national law. It is devoutly to be hoped that the court’s time will not be utilised in
the future in this way.60
The European Court of Human Rights declared Perry’s application inadmissible under
Article 6(1), pointing out that he had been given every ‘opportunity to challenge the
reliability and quality of the identification evidence based on the videotape’. The Court
reiterated
that the use at trial of material obtained without a proper legal basis or through unlawful
means will not generally offend the standard of fairness imposed by Article 6 § 1 where
proper procedural safeguards are in place and the nature and source of the material is
not tainted, for example, by any oppression, coercion or entrapment which would render
reliance on it unfair in the determination of a criminal charge . . . The obtaining of such

57  [2001] 1 Cr App R 20 at [15]–[17].

58  [2001] EWCA Crim 973, [2001] 2 Cr App R 29 at [33]. See also R v Lawrence [2002] Crim LR 584.
59  The Times, 28 Apr 2000. 60  Quotation from transcript from Smith Bernal.
182
Inves tigatory Improprie t y

information is rather a matter which calls into play the Contracting State’s responsibility
under Article 8 to secure the right to respect for private life in due form.61
In R v Mason,62 the police, having difficulty in obtaining evidence against those they
thought were involved in a number of robberies, obtained permission from the Chief
Constable to launch a covert operation. This involved arresting, interviewing, and
charging the appellants in respect of different robberies, and detaining them in the cus-
tody suite of a police station in which was installed covert audio equipment. The appel-
lants’ conversations were tape recorded, and these recordings played a fundamental role
in the prosecution case against the appellants. The appellants appealed against their
convictions on the basis, inter alia, that the recordings ought not to have been admitted
in evidence.
The Court of Appeal acknowledged, in familiar fashion, that while there had been a
breach of Article 863 the admission of the resulting evidence did not breach Article 6:
It is the responsibility of the Government to provide remedies against this violation of
Article 8. However, the remedy does not have to be the exclusion of the evidence. The rem-
edy can be the finding, which we have now made, that there has been a breach of Article 8
or it can be an award of compensation. The European Court of Human Rights recognises
that to insist on the exclusion of evidence could in itself result in a greater injustice to the
public than the infringement of Article 8 creates for the appellants. The infringement is,
however, a matter which the trial judge was required to take into account when exercising
his discretion under section 78 of PACE. . . . 
. . . everyone charged with a criminal offence is entitled to remain silent and not to
incriminate himself but this right is not contravened if a person chooses to volunteer
information as to the offences which he has committed. The police did no more than
arrange a situation which was likely to result in the appellants volunteering confessions.
The appellants were not tricked into saying what they did even though they were placed
in a position where they were likely to do so. If evidence of a satisfactory nature could be
obtained by other means, it is preferable that it is obtained by those means rather than
covertly. Here, it was not unreasonably considered by the Chief Constable that the evi-
dence would not be obtained by more conventional means. In so far as we need to do so,
we would here rely upon the judgment of this court in R v Perry . . .64
The appellants’ attempt to distinguish Khan v UK on the basis that the evidence here,
unlike that in Khan, was not reliable and of very questionable quality was also rejected.65
In sum, therefore, the approach taken is that a court’s ‘powers to regulate the admis-
sion of evidence, pursuant inter alia to s 78 and its inherent jurisdiction, represent
means of ensuring that Article 6 is not infringed. . . . unlawfully obtained evidence may
be inadmissible but is not ipso facto so. Nor is a trial in which it is relied upon necessarily
unfair.’66

61  Perry v UK (Admissibility), Application no 63737/00, 26 Sept 2002.

62  [2002] EWCA Crim 385, [2002] 2 Cr App R 38. See generally D Ormerod, ‘Police Cells and Unwanted
Bugs’ (2003) 67 Journal of Criminal Law 37.
63  As in Khan, this was prior to the Regulation of Investigatory Powers Act 2000 and thus the interfer-

ence with Art 8(1) was not ‘in accordance with the law’ for the purposes of Art 8(2).
64  [2002] EWCA Crim 385, [2002] 2 Cr App R 38 at [67]–[69] (para numbers from official transcript, not

Cr App R).
65  [2002] EWCA Crim 385, [2002] 2 Cr App R 38 at [70]–[73] (para numbers from official transcript, not

Cr App R).
66  R v Hardy [2002] EWCA Crim 3012, [2003] 1 Cr App R 30 at [18]–[19]. See also R v Plunkett [2013]

EWCA Crim 261, [2013] 1 WLR 3121; R v Turner [2013] EWCA Crim 642.
The E xclusion of Improperly Obtained E vidence 183

1.4  Violations of Article 3 and the Exclusion of Evidence

Article 3 of the European Convention on Human Rights provides: ‘No one shall be sub-
jected to torture or to inhuman or degrading treatment or punishment.’ In A v Secretary
of State for the Home Department,67 the House of Lords considered the issue of evidence
obtained by torture. While the case concerned evidence of statements, which carry obvi-
ous dangers of unreliability, the Law Lords clearly assumed that their ruling would cover
any evidence. The House of Lords held that there is a rule of law that evidence obtained
by torture is automatically inadmissible in proceedings in the United Kingdom, regard-
less of where, by whom, and against whom the torture was committed. Lord Hoffmann
noted that
the law has moved on. English law has developed a principle . . . that the courts will not
shut their eyes to the way the accused was brought before the court or the evidence of his
guilt was obtained. Those methods may be such that it would compromise the integrity of
the judicial process, dishonour the administration of justice, if the proceedings were to be
entertained or the evidence admitted. In such a case the proceedings may be stayed or the
evidence rejected on the ground that there would otherwise be an abuse of the processes
of the court.68
In the words of Lord Carswell, ‘the duty not to countenance the use of torture by admis-
sion of evidence so obtained in judicial proceedings must be regarded as paramount
and . . . to allow its admission would shock the conscience, abuse or degrade the proceed-
ings and involve the state in moral defilement’.69
The decision in A represents an acknowledgement that there may be circumstances
in which a court should be prepared, ‘on moral grounds’,70 to exclude reliable evi-
dence because of the manner in which it was obtained. It may signify a recognition
that the mismatch between the courts’ divergent approaches to exclusion of improperly
obtained evidence and stays for abuse of process has finally been laid to rest, and that
integrity considerations do have a role to play in determinations of exclusion. Yet what
is remarkable is that the House of Lords has achieved this reconciliation by casually
uncovering a common law principle of exclusion that had previously been thought not
to exist, and thereby extending the reach of Ex p Bennett into the realm of evidential
exclusion.
The House of Lords made it clear in A that the exclusionary rule in question covered
evidence obtained by torture only, and did not extend to evidence obtained by inhu-
man or degrading treatment. Such evidence was considered in Jalloh v Germany.71 As
a result of the forced administration of emetics, the defendant regurgitated a bag of
cocaine that he had swallowed. The Grand Chamber of the European Court of Human

67  [2005] UKHL 71, [2006] 2 AC 221. See generally A L-T Choo and S Nash, ‘Improperly Obtained

Evidence in the Commonwealth:  Lessons for England and Wales?’ (2007) 11 International Journal of
Evidence and Proof 75 (on which I have drawn here and later in the chapter); S Foster, ‘Detention without
Trial and the Admissibility of Torture Evidence’ (2006) 170 Justice of the Peace 64; N Grief, ‘The Exclusion
of Foreign Torture Evidence: A Qualified Victory for the Rule of Law’ [2006] European Human Rights Law
Review 201; J Mackie, ‘Life in Crime’ (2006) 150 Solicitors’ Journal 62; N Rasiah, ‘A v Secretary of State for
the Home Department (No 2): Occupying the Moral High Ground?’ (2006) 69 Modern Law Review 995; J
Samiloff, ‘Interrogating Evidence’ (2006) 156 New Law Journal 5; T Thienel, ‘Foreign Acts of Torture and
the Admissibility of Evidence: The Judgment of the House of Lords in A and Others v Secretary of State for
the Home Department (No 2)’ (2006) 4 Journal of International Criminal Justice 401.
68  [2005] UKHL 71, [2006] 2 AC 221 at [87] (italics added).
69  [2005] UKHL 71, [2006] 2 AC 221 at [150].
70  [2005] UKHL 71, [2006] 2 AC 221 at [148] per Lord Carswell. 71  (2006) 44 EHRR 32.
184
Inves tigatory Improprie t y

Rights held that the evidence had been obtained as a result of ‘inhuman and degrading
treatment’ and therefore in breach of Article 3.72 The Court did not consider that the
evidence had been obtained by torture under Article 3; if it had been, it would have had
to be automatically excluded,73 an approach consistent with that of English law. The
Court considered that the question whether evidence obtained as a result of inhuman
and degrading treatment, but not torture, was also subject to an automatic exclusion-
ary rule could be left open.74 The Court concluded on the facts of the case, however,
that the admission of the evidence did violate the defendant’s right to a fair trial under
Article 6:
The Court notes that, even if it was not the intention of the authorities to inflict pain and
suffering on the applicant, the evidence was obtained by a measure which breached one
of the core rights guaranteed by the Convention. Furthermore, it was common ground
between the parties that the drugs obtained by the impugned measure were the decisive
element in securing the applicant’s conviction. It is true that, as was equally uncontested,
the applicant was given the opportunity, which he took, of challenging the use of the
drugs obtained by the impugned measure. However, any discretion on the part of the
national courts to exclude that evidence could not come into play as they considered
the administration of emetics to be authorised by the domestic law. Moreover, the pub-
lic interest in securing the applicant’s conviction cannot be considered to have been of
such weight as to warrant allowing that evidence to be used at the trial. . . . the measure
targeted a street dealer selling drugs on a relatively small scale who was finally given a six
months’ suspended prison sentence and probation.75
The judgment in Jalloh, like that in Khan, suggests therefore that, outside the specific
context of torture, what is being advocated is effectively a balancing approach to the
question whether evidence obtained in breach of the Convention should be excluded.
Factors that will be considered by the European Court in determining whether Article
6 has been breached by the admission of the evidence include the effect of the miscon-
duct on the ability of the trial to make an accurate determination of guilt, the nature
of the right that has been breached, the existence or otherwise of adequate mecha-
nisms in domestic law for the misconduct to be taken into account, and the public
interest in bringing to conviction the perpetrator of such an offence. It is interesting
to speculate whether the European Court would have decided Jalloh differently if
the relevant German law had permitted the possibility of exclusion to be given due
consideration.

72  (2006) 44 EHRR 32 at [82]: ‘Having regard to all the circumstances of the case, the Court finds

that the impugned measure attained the minimum level of severity required to bring it within the scope
of Art 3. The authorities subjected the applicant to a grave interference with his physical and mental
integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to
retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the
impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and
inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed
risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand.
Although this was not the intention, the measure was implemented in a way which caused the applicant
both physical pain and mental suffering. He therefore has been subjected to inhuman and degrading
treatment contrary to Art 3.’
73  (2006) 44 EHRR 32 at [105]:  ‘incriminating evidence—whether in the form of a confession or real

evidence—obtained as a result of acts of violence or brutality or other forms of treatment which can be
characterised as torture—should never be relied on as proof of the victim’s guilt, irrespective of its proba-
tive value’.
74  (2006) 44 EHRR 32 at [107]. 75  (2006) 44 EHRR 32 at [107].
The E xclusion of Improperly Obtained E vidence 185

1.5  A Way Forward?

The issue of the exclusion of improperly obtained evidence remains largely unresolved
in English law. Notably, the Crown Prosecution Service has stated that prosecutors must,
‘bearing in mind the Courts[’] discretion to exclude improperly obtained evidence,
decline to use evidence reasonably believed to have been obtained through unlawful
methods which constitute a grave violation of the suspect’s or other person’s human
rights, against anyone other than those who applied such methods’.76 This leaves unclear
the issue of what constitutes a ‘grave violation’ of human rights. The unwillingness of
the courts to provide any general guidance on the exercise of the section 78(1) discretion
makes Lord Nolan’s comment in R v Khan that ‘English law relating to the ingredients
of a fair trial is highly developed’77 seem wildly exaggerated.78 An empirical study79 sug-
gests virtually no consensus among judges on precisely what the section 78(1) discretion
entails. The exercise of the discretion is typically approached on the basis that it would be
patently obvious whether exclusion is justified in a given case. No particular enthusiasm
is displayed for considering the principles justifying exclusion which have been identified
by academic commentators. More worryingly, even strong statements by the Court of
Appeal would appear to be ignored on occasion, with one judge reporting that, if he ever
found any evidence of bad faith on the part of the police, he would invariably exclude the
evidence.
The narrowness of the discretion to exclude improperly obtained evidence in
England and Wales is clearly due in no small measure to the restrictive interpreta-
tion accorded by appellate courts to the concept of trial fairness, which remains the
sole criterion on which the issue of exclusion is to be determined. This stands in con-
trast to the position in a number of other Commonwealth jurisdictions, where it is
openly acknowledged that improperly obtained evidence may be excluded even where
its admission would not endanger the possibility of a fair trial. An excellent example
is provided by the South African Bill of Rights, which provides: ‘Evidence obtained in
a manner that violates any right in the Bill of Rights must be excluded if the admis-
sion of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice.’80
Nonetheless, the concept of trial fairness in England and Wales, while interpreted
narrowly by appellate courts, is sufficiently nebulous to enable trial courts, if so minded,
to achieve exclusion in a wider range of circumstances than might appear to be sanc-
tioned by appellate decisions. Thus in R v Veneroso81 the Crown Court at Inner London
excluded evidence of the finding of drugs on the basis that the police officers, although

76  Crown Prosecution Service, Statement of Ethical Principles for the Public Prosecutor, available at http://

www.cps.gov.uk/legal/s_to_u/statment_of_ethical_principles_for_the_public_prosecutor/.
77  [1997] AC 558, 583.
78  See generally D Mathias, ‘Probative Value, Illegitimate Prejudice and the Accused’s Right to a Fair

Trial’ (2005) 29 Criminal Law Journal 8; J J Spigelman, ‘The Truth Can Cost Too Much: The Principle of a
Fair Trial’ (2004) 78 Australian Law Journal 29; N Walker, ‘What Does Fairness Mean in a Criminal Trial?’
(2001) 151 New Law Journal 1240.
79  M Hunter, ‘Judicial Discretion: Section 78 in Practice’ [1994] Criminal Law Review 558, 562–3.
80  Constitution of the Republic of South Africa, s 35(5) (italics added). See generally D Ally, ‘Avoiding

the Pitfall Encountered by the Canadian Courts when Assessing the Admissibility of Unconstitutionally
Obtained Evidence in Criminal Trials in South Africa—A Proposed Alternative Admissibility Framework’
(2010) 127 South African Law Journal 694; P J Schwikkard and S E van der Merwe, Principles of Evidence
(3rd ed 2009) Ch 12. See also the interpretation of s 24(2) of the Canadian Charter of Rights and Freedoms
by the Supreme Court of Canada: R v Grant 2009 SCC 32, [2009] 2 SCR 353.
81  [2002] Crim LR 306.
186
Inves tigatory Improprie t y

acting in good faith, had not acted lawfully under section 17(1)(e) of the Police and
Criminal Evidence Act 1984 because there was no evidence that they needed to enter
the premises to save life or limb or prevent serious damage to property. This, the Court
considered, constituted a clear breach of Article 8 and, as the public interest in bring-
ing the defendant to trial did not outweigh the need to protect his rights under Article
8 (although it might have been different if, for example, Semtex had been found), the
evidence should be excluded under section 78(1).
What is clear, however, is that, evidence obtained by torture aside, the reliability princi-
ple is at the forefront of the appellate courts’ thinking. The relative frequency with which
confessions are excluded from evidence is justified, in cases like Cooke and Chalkley, on
the basis that confession evidence is of questionable reliability. It is doubtless true that
such evidence may well be of questionable reliability; that the reliability of confession
evidence is notoriously sensitive to the manner in which it was obtained is, as has been
seen in Chapter 4, well documented. Non-confession evidence, on the other hand, is typi-
cally inherently reliable, its quality being unaffected by the manner or circumstances of
its acquisition. Yet, as seen in Chapter 4, reliability is hardly the only consideration sup-
porting the exclusion of confession evidence. Section 76 renders a confession obtained by
oppression or in circumstances conducive to unreliability inadmissible in evidence even
if it is in fact reliable. Section 78(1), too, may be said to encompass more than considera-
tions of reliability: the strong statements made in decisions on the exclusion of confession
evidence under section 78(1), referred to earlier, demonstrate that the Court of Appeal
was focusing rather more on the police breaches themselves than on the nature of the evi-
dence yielded by those breaches. Such statements suggest that the Court considered the
breaches to be capable of leading to exclusion regardless of the type of evidence in question.
It is therefore inappropriate for the Court of Appeal in cases like Chalkley to attempt to
explain away the discretionary exclusion of confession evidence solely in terms of exclu-
sion because of potential unreliability.
In the United States, an avowedly disciplinary principle is adopted. An exclusionary
rule prohibits the introduction, in a criminal trial, 82 of evidence obtained in violation
of a defendant’s rights under the Fourth Amendment, which prohibits illegal searches
and seizures. The Fourth Amendment exclusionary rule83 is ‘a judicially created means
of deterring illegal searches and seizures’.84 It will be inapplicable, however, where its
deterrence benefits would be outweighed by its costs, and it has been held on this basis
that the rule does not apply where the defendant seeks to assert another person’s Fourth
Amendment rights;85 or where the evidence is used to impeach a defendant’s testimony;86
or where the officer reasonably relied on a search warrant later deemed invalid;87 or
where the officer reasonably relied on a statute later deemed unconstitutional;88 or where
police executing a search warrant for narcotics and weapons entered a home in violation

82 See US v Calandra 414 US 338 (1974); US v Janis 428 US 433 (1976); INS v Lopez-Mendoza 468 US 1032

(1984).
83  See generally A W Alschuler, ‘Regarding Re’s Revisionism: Notes on The Due Process Exclusionary

Rule’ (2014) 127 Harvard Law Review Forum 302; L Heffernan, ‘The Fourth Amendment’s Exclusionary
Rule: Blurring the Line between Rule and Exception’ (2011) 9(2) International Commentary on Evidence;
R M Re, ‘The Due Process Exclusionary Rule’ (2014) 127 Harvard Law Review 1885; T Maclin, The Supreme
Court and the Fourth Amendment’s Exclusionary Rule (2012); J J Tomkovicz, Constitutional Exclusion: The
Rules, Rights, and Remedies that Strike the Balance between Freedom and Order (2011) Ch 1.
84  Pennsylvania Bd of Probation and Parole v Scott 524 US 357 (1998).
85  Alderman v US 394 US 165 (1969).
86  Walder v US 347 US 62 (1954); US v Havens 446 US 620 (1980).
87  US v Leon 468 US 897 (1984). 88  Illinois v Krull 480 US 340 (1987).
The E xclusion of Improperly Obtained E vidence 187

of the Fourth Amendment’s ‘knock-and-announce’ rule;89 or where ‘an officer reason-

ably believes there is an outstanding arrest warrant, but that belief turns out to be wrong
because of a negligent bookkeeping error by another police employee’;90 or where police
conduct a search in objectively reasonable reliance on binding appellate precedent that is
later overruled.91
The disciplinary principle has, however, been expressly rejected in England and Wales
as the basis for exclusion of improperly obtained evidence.92 Furthermore, a pure reme-
dial principle would treat as irrelevant the important consideration of whether the police
acted in bad faith: the focus would be solely on whether a right of the defendant has been
infringed.93 Far more flexible is the integrity principle, which permits a court to take into
account all relevant factors in determining whether to admit the evidence would com-
promise the integrity of the criminal justice system (and, perhaps, bring it into disrepute
in the eyes of the public) to such an extent that it should be excluded. Thus bad faith is
relevant because to tolerate an impropriety committed in bad faith would compromise
integrity to a greater extent than to tolerate one committed in good faith. It is there-
fore entirely possible that, in relation to the exclusion of improperly obtained confes-
sion evidence, the English courts have—inasmuch as they treat bad faith as a relevant
consideration—already moved some way towards a sub silentio adoption of the integrity
principle.94
The Rome Statute of the International Criminal Court clearly adopts the integrity prin-
ciple in relation to improperly obtained evidence. Article 69(7) provides:
Evidence obtained by means of a violation of this Statute or internationally recognized
human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage
the integrity of the proceedings.
Provisions virtually identical to this appear in the Rules of Procedure and Evidence
of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.95 In
Canada and Australia, approaches based broadly on the integrity principle have also been
expressly adopted.96

89  Hudson v Michigan 547 US 586 (2006). See generally ‘Fourth Amendment—Exclusionary Rule—

“Knock and Announce” Violations’ (2006) 120 Harvard Law Review 173.

90  Herring v US 129 S Ct 695, 698 (2009). 91  Davis v US 131 S Ct 2419 (2011).
92  See Chapter 4.
93  See generally I H Dennis, ‘Reconstructing the Law of Criminal Evidence’ (1989) 42 Current Legal

Problems 21.
94  Bad faith would also, of course, be a relevant consideration under the disciplinary principle.
95  Rule 95 of the Rules of Procedure and Evidence of both Tribunals provides:  ‘No evidence shall be

admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is anti-
thetical to, and would seriously damage, the integrity of the proceedings.’
96  In Canada, the approach was developed by the Supreme Court of Canada in interpreting s 24(2) of

the Canadian Charter of Rights and Freedoms, which provides: ‘Where . . . a court concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the
evidence shall be excluded if it is established that, having regard to all the circumstances, the admission
of it in the proceedings would bring the administration of justice into disrepute.’ See the leading case of
R v Grant 2009 SCC 32, [2009] 2 SCR 353 and, subsequently, R v Harrison 2009 SCC 34, [2009] 2 SCR
494; R v Beaulieu 2010 SCC 7, [2010] 1 SCR 248; R v Morelli 2010 SCC 8, [2010] 1 SCR 253; R v Nolet
2010 SCC 24, [2010] 1 SCR 851; R v Cole 2012 SCC 53, [2012] 3 SCR 34; R v Aucoin 2012 SCC 66, [2012]
3 SCR 408; R v Vu 2013 SCC 60, [2013] 3 SCR 657; R v Spencer 2014 SCC 43. See generally N Forester, ‘R
v Morelli: Demanding More Judicial Scrutiny of State Agents in Warranted Searches’ (2010) 72 Criminal
188
Inves tigatory Improprie t y

Given the law’s acceptance that proceedings may be stayed on account of pre-trial
impropriety even if there is no danger of the trial being ‘unreliable’ in terms of its inability
to determine guilt or innocence accurately, consistency dictates that, by analogy, improp-
erly obtained but reliable evidence should be capable of being excluded.97 The peremptory
dismissal in Chalkley of considerations drawn from the law of abuse of process was there-
fore particularly disappointing as it introduced a glaring anomaly into the law. Whether
one is considering the possibility of excluding evidence on account of pre-trial police
impropriety, or staying the proceedings on account of such impropriety, what is at stake
is surely the same fundamental question: should the prosecution be deprived of the fruit
of the pre-trial police impropriety, whether that fruit be an item of evidence or the case
as a whole?98 A further anomaly arising from Chalkley was that the stricter approach was
that which was to be applied in determining whether the potentially less drastic measure,
exclusion, should be invoked. Considerations such as these led Lord Justice Auld to call in
his review for a proper investigation of the interplay between section 78(1) and the abuse
of process doctrine.99 It now remains to be seen whether the more flexible reasoning in A
v Secretary of State for the Home Department,100 premised on concepts of integrity, will

Reports (6th) 260; M A Johnston, ‘Why Did the Fat Lady Singh? A Case Comment on R v Grant’ (2010)
56 Criminal Law Quarterly 437; M Madden, ‘Empirical Data on Section 24(2) under R v Grant’ (2010) 78
Criminal Reports (6th) 278; M Madden, ‘Marshalling the Data: An Empirical Analysis of Canada’s Section
24(2) Case Law in the Wake of R v Grant’ (2011) 15 Canadian Criminal Law Review 229; D M Paciocco,
‘Section 24(2): Lottery or Law—The Appreciable Limits of Purposive Reasoning’ (2011) 58 Criminal Law
Quarterly 15; D Porter and B Kettles, ‘The Significance of Police Misconduct in the Analysis of s 8 Charter
Breaches and the Exclusion of Evidence under s 24(2) in R v Grant, R v Harrison and R v Morelli’ (2012) 58
Criminal Law Quarterly 510; T Quigley, ‘Was it Worth the Wait? The Supreme Court’s New Approaches
to Detention and Exclusion of Evidence’ (2009) 66 Criminal Reports (6th) 88; K Roach, ‘Determining the
Seriousness of the Violation under Section 24(2) of the Charter’ (2014) 61 Criminal Law Quarterly 157; K
Roach, ‘The Future of Exclusion of Evidence after Grant and Bjelland’ (2009) 55 Criminal Law Quarterly
285; H Stewart, ‘The Grant Trilogy and the Right against Self-Incrimination’ (2009) 66 Criminal Reports
(6th) 97; H Stewart, ‘Section 24(2): Before and after Grant’ (2011) 15 Canadian Criminal Law Review 253;
D Stuart, ‘Canadian and United States Supreme Courts Rowing in Opposite Directions on Exclusion of
Unconstitutionally Obtained Evidence’ (2010) 70 Criminal Reports (6th) 62; D Stuart, ‘Welcome Flexibility
and Better Criteria for Section 24(2)’ (2009) 66 Criminal Reports (6th) 82. See also L Barmes, ‘Adjudication
and Public Opinion’ (2002) 118 Law Quarterly Review 600. In Australia, the approach was developed at
common law (R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54), and is also encapsulated
in s 138 of the Uniform Evidence Acts (see, eg, Parker v Comptroller-General of Customs [2009] HCA 7).
See generally B Selway, ‘Principle, Public Policy and Unfairness—Exclusion of Evidence on Discretionary
Grounds’ (2002) 23 Adelaide Law Review 1. S 138 also reverses the common law position by requiring the
prosecution to satisfy the court that the evidence should be admitted. It would seem that the reversal of
the onus has resulted in a slight increase in the incidence of exclusion:  B Presser, ‘Public Policy, Police
Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence’
(2001) 25 Melbourne University Law Review 757. On the Scottish position see P Duff, ‘Admissibility of
Improperly Obtained Physical Evidence in the Scottish Criminal Trial: The Search for Principle’ (2004) 8
Edinburgh Law Review 152; P Duff, ‘Irregularly Obtained Real Evidence: The Scottish Solution?’ (2004) 8
International Journal of Evidence and Proof 77.
97 See, eg, L Davidson, ‘Quashing Convictions for Pre-Trial Abuse of Process:  Breaching Public

International Law and Human Rights’ [1999] Cambridge Law Journal 466, 468: ‘it is submitted that in the
light of Mullen and the growing emphasis on human rights, law enforcement agencies would be wise to
obtain evidence at home and abroad with the same care as is required when seeking the transfer of suspects’.
98  See generally J Hunter, ‘“Tainted” Proceedings:  Censuring Police Illegalities’ (1985) 59 Australian

Law Journal 709.
99  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 11 para 111, acces-

sible via http://www.criminal-courts-review.org.uk. See also the arguments in A L-T Choo and S Nash,
‘What’s the Matter with Section 78?’ [1999] Criminal Law Review 929.
100  [2005] UKHL 71, [2006] 2 AC 221.
The E xclusion of Improperly Obtained E vidence 189

be confined in the future to evidence obtained by torture, or whether courts will take the
opportunity to extrapolate from it.
It is instructive to note that a deliberately flexible approach to exclusion was encapsulated
in the original version of section 78(1), an amendment to the Police and Criminal Evidence
Bill which was moved in the House of Lords by Lord Scarman and agreed to by the House.
Indeed, this amendment was premised upon the presumption that improperly obtained evi-
dence would be inadmissible, with the prosecution bearing the burden of satisfying the court
that the evidence in question should be admitted. The amendment read:
If it appears to the court in any proceedings that any evidence (other than a confession)
proposed to be given by the prosecution may have been obtained improperly, the court shall
not allow the evidence to be given unless—
(a) the prosecution proves to the court beyond reasonable doubt that it was obtained law-
fully and in accordance with a code of practice (where applicable) issued, approved, and
in force, under Part VI of this Act; or
(b) the court is satisfied that anything improperly done in obtaining it was of no material sig-
nificance in all the circumstances of the case and ought, therefore, to be disregarded; or
(c) the court is satisfied that the probative value of the evidence, the gravity of the
offence charged, and the circumstances in which the evidence was obtained are such
that the public interest in the fair administration of the criminal law requires the
evidence to be given, notwithstanding that it was obtained improperly.
When the Bill returned to the Commons, however, an amendment to replace the Lords’
amendment was proposed by the Home Secretary. This was agreed to and now appears
as section 78(1). The Home Secretary opined that it was inappropriate for improperly
obtained evidence to be excluded to mark society’s disapproval of improper police
conduct.101 A further objection to the Lords’ amendment related to the heavy onus of
proof which it placed upon the prosecution.102 Finally, the criteria laid down in the Lords’
amendment were considered to be too complex for a court to have to address in the course
of ordinary criminal proceedings.103 It is ironic that criteria of this kind are not consid-
ered too complex for Canadian and Australian courts. Notably, JUSTICE, the all-party
legal human rights organization, has recommended that ‘PACE should be amended to
state specifically that the courts may exclude evidence that has been obtained in breach
of a fundamental right guaranteed by the Human Rights Act 1998 if its admission would
prejudice the integrity of the criminal justice system’.104
While an approach based broadly on the integrity principle, and involving a con-
sideration of all relevant factors, has much to commend it, it is arguable that superim-
posed on such an approach should be a rule that, where evidence has been obtained in
breach of an Article of the European Convention on Human Rights that is (by virtue of
the Human Rights Act 1998) directly enforceable in domestic law, the evidence should
automatically be excluded. Considerations of integrity require that rights be taken seri-
ously, and that the Articles of the Convention be taken especially seriously.105 Thus,

101  See generally Parliamentary Debates (Hansard): House of Commons (Vol 65) (1984) col 1012.
102  Parliamentary Debates (Hansard): House of Commons (Vol 65) (1984) col 1013.
103  Parliamentary Debates (Hansard): House of Commons (Vol 65) (1984) col 1014.
104 JUSTICE, Under Surveillance: Covert Policing and Human Rights Standards (1998) 76.
105  One commentator has noted in the Canadian context that ‘it will be little comfort to an accused that

he or she has established that the evidence was obtained in violation of a major Charter standard when it
will nevertheless be used to convict because the violation wasn’t in a home, the police were in good faith
190
Inves tigatory Improprie t y

where there can be said to be a ‘causal link’ between the Convention violation and the
obtaining of the evidence, to turn a blind eye to the violation must necessarily impugn
the moral integrity of the criminal justice system to an unacceptable degree. It may be
objected that while such an automatic rule may well be appropriate for—say—a viola-
tion of Article 3, or perhaps only just the prohibition against torture in Article 3, it
is inappropriate for violations of other Articles in the Convention, which protect less
fundamental rights. Now it is true that the right to privacy, for example, is of a dif-
ferent dimension from the right to freedom from torture or inhuman or degrading
treatment. What should be remembered, however, is that, while Article 3 guarantees
an unqualified right, the right to privacy in Article 8 is subject to various qualifications
and limitations; only unjustified violations of the right to privacy constitute a breach of
Article 8. A breach of Article 8 is therefore, by definition, a serious breach, and the same
could be said of breaches of other Articles of the Convention that contain qualified
rights. Exclusion for infringing such Articles would not therefore be inconsistent with
exclusion for infringing Article 3. What is not being advocated, for example, is that any
interference with the right to privacy of the defendant that has resulted in evidence
being obtained should automatically lead to its exclusion.106

ignorance and/or the offence is considered serious’: D Stuart, ‘Eight Plus Twenty-Four Two Equals Zero’
(1998) 13 Criminal Reports (5th) 50, 63. For a time New Zealand recognized a prima facie rule of exclu-
sion, whereby there was a presumption that evidence obtained in breach of a right guaranteed by the New
Zealand Bill of Rights Act 1990 would be excluded. This was abolished in R v Shaheed [2002] 2 NZLR
377 in favour of an approach whereby, ‘where there has been a breach of a right guaranteed to a suspect
by the Bill of Rights, a Judge who is asked to exclude resulting evidence must determine whether that is a
response which is proportionate to the character of such a breach of the right in question. The Judge must
make that determination by means of a balancing process in which the starting point is to give appropri-
ate and significant weight to the existence of that breach but which also takes proper account of the need
for an effective and credible system of justice.’ ([2002] 2 NZLR 377 at [156] (italics added).) See generally
J Ip, ‘The End of the Prima Facie Exclusionary Rule’ (2002) 9 Auckland University Law Review 1016; R
Mahoney, ‘Abolition of New Zealand’s Prima Facie Exclusionary Rule’ [2003] Criminal Law Review 607.
See now Evidence Act 2006, s 30, and Hamed v R [2011] NZSC 101 (on which see generally P K Clark,
‘Exclusion of Evidence Obtained in Violation of Fundamental Rights in New Zealand and Canada’ [2011]
Journal of Commonwealth Criminal Law 345). See also C Gallavin and J Wall, ‘Search and Surveillance,
and the Exclusion of Evidence in New Zealand: Clarity or Confusion?’ (2012) 16 International Journal of
Evidence and Proof 199; S Optican, ‘“Lessons from Down Under”: The Exclusion of Improperly Obtained
Evidence in New Zealand as the Model for a Changing United States Exclusionary Rule’ [2011] Journal of
Commonwealth Criminal Law 226; D Ormerod, ‘ECHR and the Exclusion of Evidence: Trial Remedies for
Article 8 Breaches’ [2003] Criminal Law Review 61, 78 ff. Cf the approach of Lord Steyn, speaking for the
Privy Council in Mohammed v The State [1999] 2 WLR 552, who acknowledged that the breach of a con-
stitutional right should be rather more likely to lead to exclusion than the breach of some other right. For
other comparative perspectives see, on Greece, D Giannoulopoulos, ‘The Exclusion of Improperly Obtained
Evidence in Greece: Putting Constitutional Rights First’ (2007) 11 International Journal of Evidence and
Proof 181; on Ireland, J Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in
Ireland’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law
Procedural Traditions (2012); on Malaysia, S Farrar, ‘Degrading Searches and Illegally Obtained Evidence
in the Malaysian Criminal Justice System’ in P Roberts and J Hunter (eds), Criminal Evidence and Human
Rights:  Reimagining Common Law Procedural Traditions (2012); and on Singapore, H L Ho, ‘“National
Values on Law and Order” and the Discretion to Exclude Wrongfully Obtained Evidence’ [2012] Journal of
Commonwealth Criminal Law 232.
106  Such a point is made clearly by Judge Loucaides in his dissent in Khan v UK, in the context of explain-

ing that adoption of a rule requiring the mandatory exclusion of evidence obtained in breach of Article 8
would not lead to the exclusion of evidence obtained as a result of all interferences with the right to privacy
((2000) 31 EHRR 45 at [O-I8]): ‘evidence amounting to an interference with the right to privacy can be
admitted in court proceedings and can lead to a conviction for a crime, if the securing of such evidence
satisfies the requirements of the second paragraph of Article 8’.
The E xclusion of Improperly Obtained E vidence 191

Where, however, evidence has been obtained as a consequence of impropriety that does
not constitute a breach of a relevant Convention Article, automatic exclusion will not
be required, and instead the careful exercise of a balancing test will be appropriate. In
this situation the fruit is not rotten to the core and thus its automatic rejection is not
warranted, but an exercise of judgement will need to be made as to whether the fruit
is nevertheless tainted enough to be rejected. As exclusion is not automatic it becomes
relevant to give careful consideration to factors such as the seriousness of any violation
of the defendant’s (or a third party’s) rights; whether the police or prosecution have acted
in bad faith or maliciously, or with an improper motive; whether the relevant executive
actions took place in circumstances of urgency, emergency, or necessity; the availability
or otherwise of a direct sanction against the person(s) responsible for those actions; and
the seriousness of the offence with which the defendant is charged.

1.6  Civil Proceedings

Case law dealing with improperly obtained evidence in civil proceedings is rarely
encountered. In this context the decision of the Civil Division of the Court of Appeal in
Jones v University of Warwick107 is significant for two reasons. First, it appears to estab-
lish that the approach in civil cases to evidence obtained in violation of Article 8 should
be fundamentally similar to that taken in criminal cases. Secondly, it suggests, interest-
ingly, that this approach should be a flexible one involving the balancing of competing
public interests. Jones, the claimant, injured her hand in an accident at work and sought
damages from the defendant, her employer. The defendant admitted liability but did not
accept the claimant’s alleged continuing disability. Posing as a market researcher, an
inquiry agent acting for the defendant’s insurers gained access on two occasions to her
home and, using a hidden camera, videotaped her without her knowledge. On viewing
the films the defendant’s medical expert concluded that the claimant’s hand functioned
entirely satisfactorily. The defendant sought to adduce the video in evidence, but the
claimant argued for exclusion on the ground that her right to privacy under Article 8
had been violated.
The Court of Appeal considered that, ‘in both criminal and civil proceedings, courts
can now adopt a less rigid approach to that adopted hitherto which gives recognition to
the fact that there are conflicting public interests which have to be reconciled as far as this
is possible’.108 In this case:
The court must try to give effect to what are here the two conflicting public interests. The
weight to be attached to each will vary according to the circumstances. The significance
of the evidence will differ as will the gravity of the breach of Article 8, according to the
facts of the particular case. The decision will depend on all the circumstances. Here, the
court cannot ignore the reality of the situation. This is not a case where the conduct of
the defendant’s insurers is so outrageous that the defence should be struck out. The case,
therefore, has to be tried. It would be artificial and undesirable for the actual evidence,
which is relevant and admissible, not to be placed before the judge who has the task of try-
ing the case . . . to exclude the use of the evidence would create a wholly undesirable situa-
tion. Fresh medical experts would have to be instructed on both sides. Evidence which is
relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and
it would not be possible to cross-examine the claimant appropriately. For these reasons

107  [2003] EWCA Civ 151, [2003] 1 WLR 954. See generally C Foster, ‘Section 6, Spies and Videotape’

(2003) 147 Solicitors’ Journal 466.

108  [2003] EWCA Civ 151, [2003] 1 WLR 954 at [24].
192
Inves tigatory Improprie t y

we do not consider it would be right to interfere with the judge’s decision not to exclude the
evidence.109
The Court proceeded, however, to add:
While not excluding the evidence it is appropriate to make clear that the conduct of the insur-
ers was improper and not justified. . . . 
Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The
court has other steps it can take to discourage conduct of the type of which complaint is
made. In particular it can reflect its disapproval in the orders for costs which it makes. In
this appeal, we therefore propose, because the conduct of the insurers gave rise to the litiga-
tion over admissibility of the evidence which has followed upon their conduct, to order the
defendant to pay the costs of these proceedings to resolve this issue . . .110
It is noteworthy that, while it was acknowledged that a flexible ‘balancing’ approach should
be taken to such problems in civil (and criminal) proceedings, it was held in the final analysis
that, in the absence of especially outrageous conduct in this case (a finding that may well be
questioned), the public interest in the admission of relevant and reliable evidence should
prevail.

2  Evidence Obtained in Undercover Police Operations

Criminal investigations were traditionally reactive in character, with the police ‘reacting’
to reports of offences by invoking the normal investigatory procedures of entry, search, and
seizure, interviewing of suspects, and so on. Proactive methods of investigation, ‘in which
the reporting, observation and testimony can be done by the officials themselves’,111 were
traditionally far less common.112 Proactive techniques may consist of the use of surveillance

109
  [2003] EWCA Civ 151, [2003] 1 WLR 954 at [28]. See also the decision of the Scottish Court of Session
in Martin v McGuiness 2003 SLT 1424. The pursuer (claimant) brought an action against the defender
(defendant) in respect of a road accident. The defender admitted liability but there remained the issue of
the assessment of damages, with the defender contending that the pursuer exaggerated the effects of the
accident. The defender sought to rely upon evidence obtained by private investigators through inquiries
and surveillance carried out at the pursuer’s home. Lord Bonomy held (2003 SLT 1424 at [16]): ‘In striking a
fair balance between the interest of the pursuer in the security and integrity of his home as part of his right
to respect for his private and family life and the competing interest of the defender in protecting his assets
and the interests of the wider community in protecting theirs, I have had particular regard to the degree of
intrusion into the pursuer’s privacy (subterfuge in a conversation with the pursuer’s wife at the door of her
home and long-range video recording of the activities of the pursuer in the open area within the curtilage
of his property capable of being viewed by a passer-by) on the one hand, and the requirement in an adver-
sarial system of litigation that the defender should himself investigate the case against him with a view to
defending himself and his assets from a false claim together with the general threat to the assets of the wider
community from the impact of successful fraudulent claims on insurance premiums on the other hand.
I have come to the conclusion that such inquiries and surveillance as could conceivably be proved as having
been carried out in this case were reasonable and proportionate steps to be taken on behalf of the defender
to protect his rights and as a contribution to the protection of the wider rights of the community, and were,
therefore, necessary in a democratic society. The Court would not, in my opinion, be acting incompatibly
with the pursuer’s Article 8 right in admitting the evidence gathered by these inquiries and surveillance.
The pursuer was bound to anticipate that his conduct might be scrutinised.’
110  [2003] EWCA Civ 151, [2003] 1 WLR 954 at [29]–[30].
111  G Dworkin, ‘The Serpent Beguiled Me and I Did Eat: Entrapment and the Creation of Crime’ (1985)

4 Law and Philosophy 17, 18.

112  See generally M Maguire and T John, ‘Covert and Deceptive Policing in England and Wales: Issues in

Regulation and Practice’ (1996) 4 European Journal of Crime, Criminal Law and Criminal Justice 316, 316–19;
P Gill, Rounding Up the Usual Suspects? Developments in Contemporary Law Enforcement Intelligence
E vidence Obtained in Undercover Police Oper ations 193

devices or the use of undercover police operations. Traditionally, undercover police opera-
tions were mainly deployed in two scenarios: first, where a potential complainant might be
unaware that a crime had been committed (in the case, for example, of regulatory offences),
and, secondly, where potential complainants might be unwilling to report offences (for
example, where ‘victimless’ crimes were concerned). In recent times, publicity has been gen-
erated by revelations (which led to a currently ongoing review) about undercover police offic-
ers’ infiltration of networks involving activists,113 and revelations about undercover reporter
Mazher Mahmood’s deployment of his ‘fake sheikh’ tactic to initiate the (ultimately unsuc-
cessful) prosecution of entertainer Tulisa Contostavlos.114 Such operations raise a number
of issues for consideration. One of these is entrapment: there is a danger that an undercover
officer might, in order to gain evidence of ongoing criminal activity, have to offer the oppor-
tunity for its commission, and in doing so effectively create an offence which would not oth-
erwise have been committed. Of concern too is the issue of incriminating statements made
by a suspect to an undercover officer during an undercover operation. These statements
will have been obtained in a context far removed from an ordinary interview. Indeed, the
well-publicized cases of Keith Hall and Colin Stagg in 1994115 provide evidence of under-
cover police operations being used in the investigation of serious offences such as murder,
and apparently with a view to obtaining a confession from the suspect if at all possible. It will
be seen in Section 2.2 how issues pertaining to undercover operations have been dealt with
in the English law of evidence.116

2.1  The European Court of Human Rights

The European Court of Human Rights has considered issues pertaining to entrapment
on a number of occasions, most notably in Teixeira de Castro v Portugal117 in 1998 and in
the Grand Chamber judgment in Ramanauskas v Lithuania 10 years later. In the former

(2000) Ch 8; S McKay, Covert Policing: Law and Practice (2011). For a study of undercover policing in the
Netherlands, see E W Kruisbergen, D de Jong, and E R Kleemans, ‘Undercover Policing: Assumptions and
Empirical Evidence’ (2011) 51 British Journal of Criminology 394.
113
 See generally R Evans, ‘Prosecutors Forced to Admit Covert Operation Caused Miscarriage of
Justice’, The Guardian, 24 Sept 2014 (online); A Jones, ‘Sex as a Tool for Keeping the Peace? Surely That’s
Taking Undercover Policing Too Far’, The Independent, 24 Oct 2014 (online); Her Majesty’s Inspectorate of
Constabulary, An Inspection of Undercover Policing in England and Wales (2014).
114 See generally I  Burrell, ‘Fake Sheikh Mazher Mahmood:  Lord Goldsmith Calls for Review of

Convictions as Undercover Reporter Is Exposed’, The Independent, 12 Nov 2014 (online); B Rose, ‘How Was
Tulisa’s Case Ever Allowed to Proceed?’, The Independent, 25 July 2014 (online).
115 See A  L-T Choo and M Mellors, ‘Undercover Police Operations and what the Suspect Said (or

Didn’t Say)’ in M Allen (ed), Web Journal of Current Legal Issues Yearbook 1995 (1996) for a description of
these cases.
116  See generally D Birch, ‘Excluding Evidence from Entrapment: What Is a “Fair Cop”?’ (1994) 47 Current

Legal Problems 73; S Bronitt, ‘The Law in Undercover Policing: A Comparative Study of Entrapment and
Covert Interviewing in Australia, Canada and Europe’ (2004) 33 Common Law World Review 35; A L-T
Choo, ‘The Legal Aspects of Undercover Police Operations in England and Wales’ (1999) 2 International
Journal of Police Science and Management 144; A L-T Choo and M Mellors, ‘Undercover Police Operations
and what the Suspect Said (or Didn’t Say)’ in M Allen (ed), Web Journal of Current Legal Issues Yearbook 1995
(1996); H L Ho, ‘State Entrapment’ (2011) 31 Legal Studies 71; M Redmayne, ‘Exploring Entrapment’ in L
Zedner and J V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour
of Andrew Ashworth (2012); G Robertson, ‘Entrapment Evidence:  Manna from Heaven, or Fruit of the
Poisoned Tree?’ [1994] Criminal Law Review 805; S Sharpe, ‘Covert Police Operations and the Discretionary
Exclusion of Evidence’ [1994] Criminal Law Review 793; S Sharpe, ‘Covert Policing: A Comparative View’
(1996) 25 Anglo-American Law Review 163.
117  (1998) 28 EHRR 101.
194
Inves tigatory Improprie t y

a violation of Teixeira de Castro’s right to a fair trial under Article 6(1) of the European
Convention on Human Rights was found on the basis that the police officers did not
confine themselves to investigating criminal activity in an essentially passive manner,
but rather exercised an influence such as to incite the commission of the offence. In
Ramanauskas the applicant argued that his commission of the offence of accepting a
bribe had been incited by AZ and VS. Concluding ‘that the actions of the individuals in
question went beyond the mere passive investigation of existing criminal activity’,118 the
Court held:
To ascertain whether or not AZ and VS confined themselves to ‘investigating criminal
activity in an essentially passive manner’, the Court must have regard to the follow-
ing considerations. Firstly, there is no evidence that the applicant had committed any
offences beforehand, in particular corruption-related offences. Secondly, as is shown by
the recordings of telephone calls, all the meetings between the applicant and AZ took
place on the latter’s initiative, a fact that appears to contradict the Government’s argu-
ment that the authorities did not subject the applicant to any pressure or threats. On the
contrary, through the contact established on the initiative of AZ and VS, the applicant
seems to have been subjected to blatant prompting on their part to perform criminal acts,
although there was no objective evidence—other than rumours—to suggest that he had
been intending to engage in such activity.119
In the light of the Human Rights Act 1998, the sentiments expressed by the European
Court in cases such as Teixeira de Castro and Ramanauskas, and the actual judgments of
the Court in these cases, have assumed considerable significance in English law.

2.2  The Contemporary Approach in English Law

2.2.1  No Defence of Entrapment
In a strict sense, ‘entrapment’ refers to the enticement of a person, by an agent provoca-
teur, to commit an offence which he or she would not otherwise have committed.120 It has
been well established for over three decades121 that there is no defence of entrapment in
English criminal law, but that entrapment can be taken into account in mitigation of sen-
tence.122 The absence in England and Wales of a substantive defence of entrapment stands
in sharp contrast to the position in the Federal jurisdiction of the United States, which
recognizes in its criminal law a defence of entrapment. In essence, where a sufficiently
strong allegation of entrapment is made, the issue of entrapment must be left to the jury,
who must acquit the defendant unless the prosecution proves to it beyond reasonable
doubt that the defendant was not entrapped.123

118  (2008) 51 EHRR 11 at [68].

119  (2008) 51 EHRR 11 at [67]. See also Vanyan v Russia, Application no 53203/99, 15 Dec 2005; Khudobin
v Russia (2006) 48 EHRR 22; Malininas v Lithuania, Application no 10071/04, 1 July 2008.
120  The term entrapment is also used in a broader sense to refer ‘to activities taking place before or

during the commission of an offence which may aid its commission or even influence the precise way in
which it is carried out, but which do not “create” the crime’: P Mirfield, Silence, Confessions and Improperly
Obtained Evidence (1997) 201. See also S Bronitt and D Roche, ‘Between Rhetoric and Reality: Sociolegal
and Republican Perspectives on Entrapment’ (2000) 4 International Journal of Evidence and Proof 77.
121  R v Sang [1980] AC 402.
122 See R v Tonnessen [1998] 2 Cr App R (S) 328; R v Springer [1999] 1 Cr App R (S) 217; R v Shannon

[2001] 1 WLR 51, 73 (the trial judge ‘imposed a lenient sentence having taken into account in the defend-
ant’s favour the full circumstances in which the offences were committed’).
123  Sorrells v US 287 US 435 (1932); Sherman v US 356 US 369 (1958); Masciale v US 356 US 386 (1958); US

v Russell 411 US 423 (1973); Hampton v US 425 US 484 (1976); Mathews v US 108 S Ct 883 (1988); Jacobson v
E vidence Obtained in Undercover Police Oper ations 195

2.2.2  Exclusion under Section 78(1) of the Police and

Criminal Evidence Act 1984
It has been firmly established since the 1990s that evidence obtained in undercover police
operations can be excluded under section 78(1) if the circumstances warrant it. The lead-
ing case is R v Smurthwaite,124 in which the Court of Appeal provided a non-exhaustive
list of factors which may be considered by a court in deciding whether to exercise its exclu-
sionary discretion.125 First, ‘was the officer acting as an agent provocateur in the sense
that he was enticing the defendant to commit an offence he would not otherwise have
committed?’126 Thus, the earlier uncertainty in English law about whether section 78(1)
could be used at all to exclude evidence obtained by entrapment was resolved by
Smurthwaite.127 What is unclear, however, is the precise weight which Smurthwaite
requires to be attached to this factor. Does the presence of entrapment weigh heavily in
favour of exclusion, or is it a factor which carries no special weight and is merely to be
balanced against all other relevant factors? The earlier case of Williams v DPP provides an
illustration of failure to exercise the exclusionary discretion under section 78(1) despite
the presence of entrapment. As part of ‘Operation Rover’, the police left an unattended
and unsecured van containing dummy cartons of cigarettes in a busy street. The appel-
lants came along, walked around the van, and then removed the cartons from the van.
They were charged with interfering with a motor vehicle with intent to commit theft. The
Divisional Court held that the justices had not erred in declining to exclude the evidence
under section 78(1); the police had not, in the view of the Court, incited, counselled, or
procured the commission of the offence.128 Yet it is clear, as Mirfield points out, that ‘the
effect of the police conduct was certainly that an offence was committed which would not,
without their intervention, have been committed’.129
Secondly, ‘what was the nature of any entrapment?’ This implies that certain types of
entrapment may be acceptable, and that some types may be more acceptable than other
types. Again, however, no guidance is provided on this vital issue.130
Thirdly, is what is at issue evidence of a confession to an offence, or is it evidence of
the actual commission of an offence? What the Court of Appeal has in mind here is the
legitimate uses of undercover police operations. Such an operation may legitimately be

US 112 S Ct 1535 (1992). See generally R J Allen, M Luttrell, and A Kreeger, ‘Clarifying Entrapment’ (1998)
1(2) International Commentary on Evidence; R C Park, ‘Would a Market-Based Test Clarify Entrapment?’
(1999) 1(2) International Commentary on Evidence; K A Smith, ‘Psychology, Factfinding, and Entrapment’
(2005) 103 Michigan Law Review 759.
124  [1994] 1 All ER 898. See also the earlier cases of R v Harwood [1989] Crim LR 285; R v Gill [1989] Crim

LR 358; R v Edwards [1991] Crim LR 45; Williams v DPP [1993] 3 All ER 365.
125  [1994] 1 All ER 898, 903. See also the discussion by P Mirfield, Silence, Confessions and Improperly

Obtained Evidence (1997) 202–4.

126 Cf R v Kennedy [1999] 1 Cr App R 54.
127  The argument that s 78(1) should not be able to be invoked to exclude evidence obtained by entrap-

ment proceeded on the following (rather tenuous) basis. If entrapment evidence were excluded and the
evidence were the only prosecution evidence, or perhaps a crucial part of the prosecution evidence, the case
against the accused would collapse. This would be tantamount to a recognition of a defence of entrapment,
which does not exist in England and Wales, through the back door.
128  [1993] 3 All ER 365, 368.
129  P Mirfield, Silence, Confessions and Improperly Obtained Evidence (1997) 202.
130  Mirfield notes that of relevance to the second factor would probably be ‘the way in which the inter-

vention took place, as well, perhaps, as its culpability, both in terms of public danger and otherwise. For
example, a police agent who joined in an already existing conspiracy would surely be more culpable if
the conspiracy were one to cause explosions than if it were one to supply cannabis’ (P Mirfield, Silence,
Confessions and Improperly Obtained Evidence (1997) 202).
196
Inves tigatory Improprie t y

used, in appropriate circumstances, to obtain evidence of an offence while it is being

committed, but may not be used as a means of deliberately circumventing Code C in
order to obtain a confession. The extent to which incriminating statements made by
an accused in the course of an undercover police operation may be excluded from evi-
dence under section 78(1) was considered by the Court of Appeal in R v Christou.131 The
case arose from an undercover police operation which the Court of Appeal described
as unique in the United Kingdom. A shop called ‘Stardust Jewellers’ was set up by the
police for the purpose of combating burglary and robbery in parts of North London.
This shop purported to conduct the business of buying and selling jewellery on a com-
mercial basis, but was in reality an undercover operation and staffed solely by two
undercover officers. As a result of this operation, Christou and Wright were convicted
of handling stolen goods. They argued that evidence of the conversations in the shop
ought to have been excluded under section 78(1) on the basis, inter alia, that there
had been a breach of Code C in that no cautions had been administered. The Court of
Appeal held that Code C was inapplicable in this situation since the undercover offic-
ers had not been overtly acting as police officers. Having said this, however, the Court
was careful to enter the following caveat: ‘It would be wrong for police officers to adopt
or use an undercover pose or disguise to enable themselves to ask questions about an
offence uninhibited by the requirements of the Code and with the effect of circum-
venting it. . . . Were they to do so, it would be open to the judge to exclude the questions
and answers under section 78’.132 This caveat was actually applied by the Court in the
later case of R v Bryce.133
Fourthly, ‘how active or passive was the officer’s role in obtaining the evidence?’ This
implies that to play an active role in an undercover operation may be less justifiable than
to play a passive role, and thus the more active the officer’s role the more likely exclusion
would be. No guidance is provided, however, on the question of what may constitute an
active role and what may constitute a passive role.
Fifthly, is there strong corroboration of the prosecution version of what occurred dur-
ing the undercover operation? Is there, for example, an ‘unassailable record’ of what
occurred? The concern here is clearly with the possibility that evidence of what transpired
in the course of the undercover operation may have been fabricated by the police.
Sixthly and finally, the Court of Appeal in Smurthwaite thought that it would be nec-
essary to consider whether the officer ‘has abused his role to ask questions which ought
properly to have been asked as a police officer and in accordance with the codes’. This is
obviously linked to the third of these factors, as discussed three paragraphs earlier.134
More recently, however, the Court of Appeal would appear to have embraced a much
narrower approach to discretionary exclusion. In R v Shannon135 the defendant was

131  [1992] 1 QB 979. See A Ashworth, ‘Should the Police Be Allowed to Use Deceptive Practices?’ (1998)

114 Law Quarterly Review 108, 134–5.

132  [1992] 1 QB 979, 991. The High Court of Australia appears to have adopted the test of whether the

statements were ‘elicited’ from the defendant by the undercover officer: R v Swaffield (1998) 72 ALJR 339;
see generally L Martinez, ‘Confessions and Admissions to Undercover Police and Police Agents’ (2000)
74 Australian Law Journal 391; A Palmer, ‘Applying Swaffield:  Covertly Obtained Statements and the
Public Policy Discretion’ (2004) 28 Criminal Law Journal 217; A Palmer, ‘Applying Swaffield Part II: Fake
Gangs and Induced Confessions’ (2005) 29 Criminal Law Journal 111; E Stone, ‘The Law of Confessions in
Theory and Practice: Swaffield and Pavic’ (1999) 3 International Journal of Evidence and Proof 57. A similar
approach is taken in Canada: R v Liew [1999] 3 SCR 227.
133  [1992] 4 All ER 567.
134  Cf the factors identified in JUSTICE, Under Surveillance: Covert Policing and Human Rights Standards

(1998) 82.
135  [2001] 1 WLR 51.
E vidence Obtained in Undercover Police Oper ations 197

charged with supplying drugs to Mazher Mahmood, mentioned in Section 2, who, char-
acteristically, was posing as an Arab sheikh in an elaborate operation. John Shannon
was the real name of John Alford, an actor who appeared in the television programme
London’s Burning. Subsequent to the operation the (now defunct) News of the World pub-
lished the front-page headline ‘London’s Burning Star is Cocaine Dealer’, and the police
took over investigative material from the newspaper. On the defendant’s appeal against
conviction the Court of Appeal held that the judge had ‘found, rightly in our view, that
the evidence fell short of establishing actual incitement or instigation of the offences
concerned’.136
The Court, however, made observations suggesting that the discretion to exclude
should be confined to situations where there were doubts about the reliability of the
evidence—where, for example, the agent provocateur might not be a credible witness
or there was no reliable recording of the undercover operation.137 While these observa-
tions are strictly obiter, the focus on the quality of the evidence rather than its prov-
enance would appear to be consistent with the prevailing approach of the courts to
section 78(1), as discussed in Section 1.3, and to constitute a substantial narrowing
of the approach in Smurthwaite. The Shannon approach to exclusion may, however,
have gained some support in the House of Lords, as will be discussed in Section 2.2.3.
It is also to be noted that the European Court of Human Rights138 declared inadmis-
sible Shannon’s complaint ‘under Article 6 of the Convention that the admission of
and reliance upon the evidence obtained by entrapment by the journalist rendered his
trial unfair’:
The Court finds no reason to question this assessment of the domestic courts or, on the
basis of its own examination of the material before it, to reach a different conclusion. It
further notes that the applicant did not at any stage, either in the domestic proceedings
or in his application to the Court, allege that the audio or video evidence against him was
not genuine or was otherwise unreliable. Had he done so, it has not been disputed that it
would have been open to the applicant in the domestic proceedings to challenge its admis-
sion on this ground.
In these circumstances, the Court finds that the admission of the evidence in ques-
tion did not result in any unfairness and that no appearance of violation of Article 6 is
disclosed in this respect.

2.2.3  The Abuse of Process Doctrine

Exclusion of evidence resulting from an undercover operation may or may not have the
effect of preventing the trial from proceeding altogether. Whether it would have this
effect would obviously be dependent on how important the evidence is to the prosecu-
tion case as a whole. The House of Lords has held, however, that in certain circumstances
a court may, on account of improper conduct during an undercover operation, directly
prevent the case from proceeding altogether. This would be achieved through the court’s
exercise of its judicial discretion to stay proceedings as an abuse of the process of the
court. In R v Latif; R v Shahzad139 the appeal to the House of Lords centred upon Shahzad,

136  [2001] 1 WLR 51, 70.

137  See quotation at text accompanying footnote 156 in Section 2.2.3.
138  Shannon v UK (Admissibility), Application no 67537/01, 6 Apr 2004.
139 [1996] 1 WLR 104. See generally A Ashworth, ‘Should the Police Be Allowed to Use Deceptive

Practices?’ (1998) 114 Law Quarterly Review 108, 119–20; K Grevling, ‘Undercover Operations: Balancing
the Public Interest?’ (1996) 112 Law Quarterly Review 401; S Sharpe, ‘Judicial Discretion and Investigative
Impropriety’ (1997) 1(2) International Journal of Evidence and Proof 149.
198
Inves tigatory Improprie t y

whose appeal was conjoined with that of Latif. Shahzad was accused of being knowingly
concerned in the importation of heroin from Pakistan. He argued that the prosecution
should have been stayed as an abuse of process because of the involvement and assistance
of Honi, an informer, and officers of the Customs and Excise. Indeed, it was a Customs
officer who actually imported the heroin. The House of Lords acknowledged140 that
‘Shahzad would probably not have committed the particular offence of which he was
convicted, but for the conduct of Honi and customs officers, which included criminal
conduct’. If, however, a court were always to stay the proceedings in such cases, it would
‘incur the reproach that it is failing to protect the public from serious crime’. If, on the
other hand, the proceedings were never to be stayed, ‘the perception will be that the court
condones criminal conduct and malpractice by law enforcement agencies. That would
undermine public confidence in the criminal justice system and bring it into disrepute.’ It
would be inappropriate, therefore, to adopt either extreme position. The approach, rather,
should be as follows. First, if the court concludes that the impugned conduct would make
a fair trial impossible, the proceedings must automatically be stayed. What is envisaged
here, clearly, is the unlikely possibility of the conduct affecting trial fairness in the sense
of compromising the ability of the trial to determine guilt or innocence properly. In the
present case, it was ‘plain that a fair trial was possible and that such a trial took place’. In
such a situation it would be necessary to proceed to the second question, which is whether,
despite a fair trial being possible, the judge ought nevertheless to stay the proceedings on
the basis that it would be contrary to the public interest in the integrity of the criminal
justice system for the trial to proceed. In other words, ‘it is for the judge in the exercise of
his discretion to decide whether there has been an abuse of process, which amounts to an
affront to the public conscience and requires the criminal proceedings to be stayed’. In
exercising this discretion, the court must perform a balancing exercise: ‘in a case such as
the present the judge must weigh in the balance the public interest in ensuring that those
that are charged with grave crimes should be tried and the competing public interest in
not conveying the impression that the court will adopt the approach that the end justified
any means’. In the circumstances of the present case the House of Lords concluded that
the judge had not erred in declining to stay the proceedings: he had taken into account the
relevant considerations placed before him and performed the balancing exercise. He had
been entitled to take the view that Shahzad was an organizer in the heroin trade and had
taken the initiative in proposing the importation. In addition, Shahzad was 37 years old
at the time; he was not a vulnerable and unwilling person; he had made it clear from the
beginning that he was ready and willing to arrange the export of heroin from Pakistan;
he had simply been provided with the opportunity to commit the offence if he was so
minded, and he was so minded. Thus, ‘the conduct of the customs officer was not so
unworthy or shameful that it was an affront to the public conscience to allow the prosecu-
tion to proceed. Realistically, any criminal behaviour of the customs officer was venial
compared to that of Shahzad’.
Latif; Shahzad established therefore that, where undercover police operations are
concerned, either the exclusion of evidence or a stay of the proceedings as a whole may
be ordered by the trial judge in the exercise of his or her discretion. Unfortunately, the
precise relationship between these alternative judicial measures was not properly clari-
fied. Latif; Shahzad was followed, some years later, by the major decision of the House
of Lords on entrapment in R v Looseley; A-G’s Reference (No 3 of 2000).141 Adopting the

140 [1996] 1 WLR 104, 111–13.

141  [2001] UKHL 53, [2001] 1 WLR 2060. See generally A Ashworth, ‘Entrapment and Criminal
Justice (R v Looseley and Attorney General’s Reference (No 3 of 2000))’ (2002) 2 Oxford University
E vidence Obtained in Undercover Police Oper ations 199

approach that had been adopted over a decade earlier in Canada,142 the House of Lords
confirmed in Looseley; A-G’s Reference that proof that the defendant in a particular case
was entrapped can lead to a stay of the proceedings. The reason why a stay of proceedings
might be appropriate in such a case was reiterated: ‘A stay should be granted not because
the accused was not guilty or because he could not receive a fair trial or to discipline the
police but to protect the integrity of the criminal justice system.’143 The fundamental test
to be applied to determine whether a stay should be granted was articulated in these
terms: ‘the principles of English law on which a stay of proceedings may be granted on
grounds of entrapment involve the consideration of a number of aspects of the behaviour
of the law enforcement authorities . . . and deciding whether the involvement of the court
in the conviction of a defendant who had been subjected to such behaviour would com-
promise the integrity of the judicial system’.144
Some guidance on factors that it may be relevant, or irrelevant, to consider in the con-
text of applying the fundamental test articulated in Looseley; A-G’s Reference (No 3 of
2000) is provided in the speeches of the Law Lords. Lord Nicholls of Birkenhead, in par-
ticular, drew attention to the following factors:
The nature of the offence. The use of pro-active techniques is more needed and, hence,
more appropriate, in some circumstances than others. The secrecy and difficulty of detec-
tion, and the manner in which the particular criminal activity is carried on, are relevant
considerations.
The reason for the particular police operation. It goes without saying that the police
must act in good faith and not, for example, as part of a malicious vendetta against an
individual or group of individuals. Having reasonable grounds for suspicion is one way
good faith may be established, but having grounds for suspicion of a particular individual
is not always essential. Sometimes suspicion may be centred on a particular place, such as
a particular public house. Sometimes random testing may be the only practicable way of
policing a particular trading activity.
The nature and extent of police participation in the crime. The greater the inducement
held out by the police, and the more forceful or persistent the police overtures, the more
readily may a court conclude that the police overstepped the boundary: their conduct
might well have brought about commission of a crime by a person who would normally
avoid crime of that kind. In assessing the weight to be attached to the police induce-
ment, regard is to be had to the defendant’s circumstances, including his vulnerability.

Commonwealth Law Journal 125; A Ashworth, ‘Re-Drawing the Boundaries of Entrapment’ [2002]
Criminal Law Review 161; R R Jerrard, ‘Entrapment: Abuse of Legal Process for Police to Incite Crime’
(2002) 75 Police Journal 245; B Lewin, ‘Test Purchasing—The Impact of the Human Rights Act 1998
and the Regulation of Investigatory Powers Act 2000’ (2001) 165 Justice of the Peace 956; S McKay,
‘Entrapment:  Competing Views on the Effect of the Human Rights Act on English Criminal Law’
[2002] European Human Rights Law Review 764; S O’Doherty, ‘Entrapment: From Mitigation to Abuse’
(2002) 166 Justice of the Peace 984; D Ormerod and A Roberts, ‘The Trouble with Teixeira: Developing a
Principled Approach to Entrapment’ (2002) 6 International Journal of Evidence and Proof 38; S McKay,
‘Approaching Allegations of Entrapment: Part I’ (2009) 173 Criminal Law and Justice Weekly 11; S McKay,
‘Approaching Allegations of Entrapment: Part II’ (2009) 173 Criminal Law and Justice Weekly 33; A L-T
Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed 2008) Ch 5 (on which I have
drawn in this section); D Young, M Summers, and D Corker, Abuse of Process in Criminal Proceedings
(4th ed 2014) Ch 6. The appeals in the cases of Looseley and the Attorney-General’s Reference were heard
together by the House of Lords.
142  R v Mack (1988) 44 CCC (3d) 513. See also, more recently, R v Campbell [1999] 1 SCR 565; R v Imoro

2010 SCC 50, [2010] 3 SCR 62.

143  [2001] UKHL 53, [2001] 1 WLR 2060 at [39] per Lord Hoffmann.
144  [2001] UKHL 53, [2001] 1 WLR 2060 at [71] per Lord Hoffmann.
200
Inves tigatory Improprie t y

This is not because the standards of acceptable behaviour are variable. Rather, this is a
recognition that what may be a significant inducement to one person may not be so to
another. For the police to behave as would an ordinary customer of a trade, whether
lawful or unlawful, being carried on by the defendant will not normally be regarded as
objectionable.
The defendant’s criminal record. The defendant’s criminal record is unlikely to be rel-
evant unless it can be linked to other factors grounding reasonable suspicion that the
defendant is currently engaged in criminal activity. . . . past crimes do not forever outlaw
the criminal and open him to police practices, aimed at securing repeated convictions,
from which the ordinary citizen is protected . . .145
Further guidance is provided on the third of the four factors outlined, Lord Nicholls
commenting that,
in identifying the limits to the types of police conduct which, in any set of circumstances,
are acceptable[,]‌ . . . a useful guide is to consider whether the police did no more than pre-
sent the defendant with an unexceptional opportunity to commit a crime. I emphasise
the word ‘unexceptional’. The yardstick for the purpose of this test is, in general, whether
the police conduct preceding the commission of the offence was no more than might have
been expected from others in the circumstances. Police conduct of this nature is not to be
regarded as inciting or instigating crime, or luring a person into committing a crime. The
police did no more than others could be expected to do. The police did not create crime
artificially.146
This consideration, Lord Hoffmann thought, explained the decision of the Divisional
Court in Nottingham City Council v Amin147 that the police conduct in question had been
acceptable. The defendant, a taxi driver, was hailed by two plain-clothes police officers in
an area not covered by his licence, and charged with plying for hire without a licence. The
police conduct was unobjectionable because ‘the policemen behaved like ordinary mem-
bers of the public in flagging the taxi down. They did not wave £50 notes or pretend to be
in distress.’148 In a similar vein, a clear majority of the House of Lords149 considered that
the trial judge in A-G’s Reference (No 3 of 2000) had been right in staying the proceedings.
In the words of Lord Hutton:
I consider that the judge was right to rule that the prosecution should be stayed on the
ground that the police officers had instigated the offence. It was clear on the facts that
the reason why the acquitted person had supplied heroin to the officers was because they
repeatedly offered to supply, and did supply to him, cut-price cigarettes and he wished
to continue to benefit from that supply. When he was interviewed by the police after
his arrest he said that he was not interested in heroin, but that he had become involved

145  [2001] UKHL 53, [2001] 1 WLR 2060 at [26]–[29].

146  [2001] UKHL 53, [2001] 1 WLR 2060 at [23]. 147  [2000] 1 WLR 1071.
148  R v Looseley; A-G’s Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060 at [54] per Lord

Hoffmann.
149  See Lord Hoffmann at [2001] UKHL 53, [2001] 1 WLR 2060 at [81], and Lord Hutton at [116]. Lord

Nicholls of Birkenhead (at [32]) agreed with the reasoning of Lord Hoffmann and Lord Hutton. Lord
Mackay of Clashfern (at [33]) agreed with the reasoning of Lord Nicholls of Birkenhead, Lord Hoffmann,
and Lord Hutton. The fifth Law Lord, Lord Scott of Foscote, was rather more cautious: ‘I doubt whether the
conduct of the police officers was out of the line of what might have been expected of many purchasers of
contraband cigarettes. The inducements offered to the accused in order to persuade him to supply heroin
do not seem to me to correspond with what would be necessary to cause the prosecution to be an affront to
the public or to offend ordinary notions of fairness. This was, however, a matter for the discretion of the trial
judge, and it may be that his value judgment was one that he was entitled to reach’ (at [127]).
E vidence Obtained in Undercover Police Oper ations 201

because two men had approached him offering to sell him cheap cigarettes. He said it was
‘a favour for a favour’. Therefore the officers did more than give him the opportunity to
commit the offence of supplying heroin—they instigated the offence because they offered
him inducements that would not ordinarily be associated with the commission of such
an offence.150
In relation to Looseley, by contrast, Lord Hutton noted:
In the case of Looseley, . . . the judge considered that tape recordings which were played to
him gave a degree of support to the contention of the prosecution that Looseley was an
active and current drugs dealer. The undercover police officer made contact with Looseley
in the course of an undercover police operation concerning the supply of drugs in the
Guildford area. A senior police officer had authorised the operation and had overseen its
progress. The judge found that the undercover officer had presented himself to Looseley
as an ideal customer for a drugs deal, but the judge also found specifically that he did
not go beyond that portrayal and that he presented himself exactly as someone in the
drugs world would expect to see a heroin addict. There then arose a relationship between
Looseley and the officer during which Looseley supplied him with heroin on more than
one occasion. The judge found that there was evidence to show that Looseley was steeped
in the drug culture and encouraged the officer, whom he probably saw as a lucrative cus-
tomer, to take more heroin from him.
The judge’s conclusion . . . was that, whilst the officer presented himself as an ideal cus-
tomer so far as a drugs dealer was concerned, the officer did not do anything other than
present himself as such, and accordingly the conduct of the officer did not constitute
incitement. In my opinion the judge’s assessment . . . was one which he was fully entitled
to make.151
The approach embraced and applied in Looseley; A-G’s Reference (No 3 of 2000), the
House of Lords thought, made the English law on entrapment fully compatible with the
requirements of European human rights law as encapsulated in Teixeira de Castro.152
It will be noted that the approach places considerable emphasis on whether the defend-
ant was offered an ‘unexceptional opportunity’ to commit the offence. As Squires has
cogently argued, however, this apparently simple and superficially attractive notion
may have further-reaching implications than may first appear. He notes that, by asking
whether an ‘unexceptional opportunity’ was offered to the defendant, what the courts are
really doing is
inquiring whether the defendants themselves ordinarily confronted the kinds of
temptations and opportunities the police put before them. . . . Did the defend-
ant in Attorney-General’s Reference ordinarily come across people to whom he felt
indebted who asked to buy heroin and was it usual for Looseley to be asked to sup-
ply heroin for £30 by strangers who telephoned him? . . . It was because he inhabited
a ‘drugs world’ that Looseley would ordinarily expect to face the opportunity the
police put before him and was not ‘entrapped’. . . . The inducement offered to the
defendant in Attorney-General’s Reference, namely a request to purchase a small

150  [2001] UKHL 53, [2001] 1 WLR 2060 at [116].

151  [2001] UKHL 53, [2001] 1 WLR 2060 at [113]–[114].
152  See, eg, [2001] UKHL 53, [2001] 1 WLR 2060 at [30] per Lord Nicholls of Birkenhead (‘I do not dis-

cern any appreciable difference between the requirements of [A]‌r ticle 6, or the Strasbourg jurisprudence
on [A]rticle 6, and English law as it has developed in recent years’); [2001] UKHL 53, [2001] 1 WLR 2060 at
[117] per Lord Hutton (‘the [relevant] principles of English law . . . are in conformity with [A]rticle 6 of the
European Convention on Human Rights and the jurisprudence of the European Court of Human Rights
and do not require modification’).
202
Inves tigatory Improprie t y

amount of heroin, may have been identical to that put before Looseley, but it was not
regarded as typical of the kind of world in which he operated so he was held to be
‘entrapped’.153
Thus the application of the ‘unexceptional opportunity’ criterion may have the effect of caus-
ing the doctrine of entrapment to work in a discriminatory fashion, allowing those who
operate in a ‘criminal world’ less of an opportunity of successfully arguing that they have
been improperly entrapped than those who do not inhabit such a world.
A number of decisions of the Court of Appeal have considered Looseley; A-G’s Reference
(No 3 of 2000). Illustrative is R v Jones.154 Cannabis being a controlled drug, it was illegal to
produce it, but not illegal to offer for sale or supply cannabis-smoking paraphernalia, the
equipment necessary to grow cannabis, books on growing cannabis, or cannabis seeds.
The defendant was the proprietor of a shop selling smoking paraphernalia and hydropon-
ics equipment. An undercover officer, posing as a novice would-be cannabis grower, was
sent into the shop a number of times. The defendant informed the officer that it was illegal
to grow cannabis and that he could only talk about tomato plants. The defendant was
charged with incitement to produce cannabis, and the issue arose, inter alia, of whether
the prosecution constituted an abuse of process by reason of entrapment if, as alleged, the
offence of incitement had indeed been committed. The Court of Appeal held that
it is necessary to have in mind that a dealer in drugs will not voluntarily offer drugs to
a stranger unless first approached and that this approach may need to be and can be
persistent without crossing the line. . . . Although it was accepted that the police did not
have a specific basis for targeting this shop premises and its staff as having incited the
production of cannabis, it was entirely appropriate for undercover officers to test the
way in which it operated. This prosecution was not an abuse of the court’s process but
properly engaged the court in a task for which (assuming sufficient evidence as a mat-
ter of law) the jury were uniquely qualified to judge: if the jury were not sure that the
appellant had in fact incited the officer to produce cannabis because the references to
tomatoes were not a sham or he did not go sufficiently far in what he said, he was entitled
to be acquitted.155
If a stay is not ordered on the basis of improper entrapment, there remains the possibility
that the evidence of the agent provocateur may be excluded under section 78(1). Reference
has been made in Section 2.2.2 to the narrow view on exclusion taken in Shannon in con-
trast to the somewhat broader view taken previously in Smurthwaite. The relevant passage in
Shannon reads as follows:
So, for instance, if there is good reason to question the credibility of evidence given by
an agent provocateur, or which casts doubt on the reliability of other evidence procured
by or resulting from his actions, and that question is not susceptible of being properly or
fairly resolved in the course of the proceedings from available, admissible and ‘untainted’
evidence, then the judge may readily conclude that such evidence should be excluded. If,
on the other hand, the unfairness complained of is no more than the visceral reaction that
it is in principle unfair as a matter of policy, or wrong as a matter of law, for a person to
be prosecuted for a crime which he would not have committed without the incitement or
encouragement of others, then that is not itself sufficient . . .156

153  D Squires, ‘The Problem with Entrapment’ (2006) 26 Oxford Journal of Legal Studies 351, 357–8

(italics added).
154  [2010] EWCA Crim 925, [2010] 3 All ER 1186.
155  [2010] EWCA Crim 925, [2010] 3 All ER 1186 at [15].
156  R v Shannon [2001] 1 WLR 51, 68 (italics added).
Further Re ading 203

Of the three Law Lords in Looseley; A-G’s Reference who considered the issue, two—Lord
Hoffmann157 and Lord Hutton158—would appear to have accepted that this passage cor-
rectly states the law. Rather confusingly, the third, Lord Nicholls of Birkenhead, stated
without explanation that his interpretation of the judgment in Shannon was that it
‘accepted that evidence may properly be excluded when the behaviour of the police or
prosecuting authority has been such as to justify a stay on grounds of abuse of process’.159
Thus Lord Hoffmann and Lord Hutton would appear implicitly to have endorsed a nar-
row approach to exclusion while Lord Nicholls, misinterpreting Shannon, has endorsed
a broad approach.

3  Summary and Conclusion

Evidence obtained by torture aside, there appears to be a marked judicial reluctance to
sanction the exclusion of improperly obtained evidence the reliability of which is not
disputed. In criminal proceedings, giving consideration to the possibility of excluding
the evidence under section 78 of the Police and Criminal Evidence Act 1984 is regarded
as sufficient to secure compliance with Article 6 of the European Convention on Human
Rights. This is well illustrated by the case law on the consequences of breaches of Article
8 of the Convention.
In the light of R v Looseley; A-G’s Reference (No 3 of 2000), there is now a distinct doc-
trine of entrapment in English law, requiring proceedings made possible by improper
entrapment to be stayed as an abuse of the process of the court. The House of Lords in
Looseley; A-G’s Reference (No 3 of 2000) provided guidelines to be considered by a court
in determining whether a stay would be appropriate. Whether an ‘unexceptional oppor-
tunity’ was offered for the commission of the offence would appear to be a key considera-
tion, albeit not an uncontroversial one.

Further Reading
A L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed 2008) Ch 5
A L-T Choo and S Nash, ‘Improperly Obtained Evidence in the Commonwealth: Lessons for
England and Wales?’ (2007) 11 International Journal of Evidence and Proof 75
M Redmayne, ‘Exploring Entrapment’ in L Zedner and J V Roberts (eds), Principles and
Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (2012)

157  [2001] UKHL 53, [2001] 1 WLR 2060 at [43].

158  [2001] UKHL 53, [2001] 1 WLR 2060 at [103].
159  [2001] UKHL 53, [2001] 1 WLR 2060 at [12].
8
Public Interest Immunity and
Related Matters

It will have been seen from the examination of improperly obtained evidence in
Chapter 7 that involved in that topic is a clash of two competing public interests: on
the one hand, the public interest in allowing the admission of all relevant and reliable
evidence, in order that those guilty of crimes may be brought to conviction, and, on
the other hand, the public interest in maintaining the moral integrity of the criminal
justice process. A similar clash of competing public interests underlies the doctrine of
public interest immunity. The law takes the view that, in appropriate circumstances,
material which would otherwise be disclosed in the course of litigation may be withheld
on the basis that disclosure would undermine the public interest1—by, for example,
compromising national security or the proper functioning of the public service. The
issue of public interest immunity has been the subject of continuing public attention.
It was subjected to intense scrutiny in the 1990s as a result of the Matrix Churchill
case and the subsequent publication of the Scott Report. In the Matrix Churchill case,
three directors of Matrix Churchill, a company manufacturing and exporting machine
tools, were charged with supplying arms-making equipment to Iraq, in breach of the
Government’s published export guidelines. The directors’ defence was that Government
ministers were aware of, and authorized, the exporting, and that MI6 also knew. Four
ministers signed public interest immunity certificates in relation to documents of
which the defence sought disclosure. The trial judge ordered disclosure of some of these.
The prosecution then discontinued the trial, because Alan Clark, the then Minister
of State at the Department of Trade and Industry, admitted under cross-examination
that the Government had been fully aware of the intended use of the equipment. 2 In
the light of the Matrix Churchill case an inquiry by Sir Richard Scott, a High Court
judge, was instituted. One of the issues into which he inquired was the use of public
interest immunity certificates to restrict the availability of evidence at the criminal
trial. The inquiry culminated in the publication, in February 1996, of the Scott Report, 3

1  See, eg, Criminal Procedure and Investigations Act 1996, ss 3(6), 7A(8), 8(5).
2  See generally I Leigh, ‘Matrix Churchill, Supergun and the Scott Inquiry’ [1993] Public Law 630; I Leigh,
‘Reforming Public Interest Immunity’ in M J Allen (ed), Web Journal of Current Legal Issues Yearbook 1995
(1996); A Tomkins, ‘Public Interest Immunity after Matrix Churchill’ [1993] Public Law 650.
3  R Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and

Related Prosecutions (1996).

The De velopment of the L aw 205

which made a number of important observations about the use of public interest immu-
nity in criminal cases.
Subsequently, as will be seen in this chapter, debate centred around the use in certain
circumstances of ex parte hearings (that is, hearings at which the defence is not present)
to determine public interest immunity issues in criminal cases.4
The focus of this chapter is on public interest immunity. The discussion of public inter-
est immunity will be followed by a relatively brief account of two other types of informa-
tion to which access may be restricted: information that is subject to an obligation of
confidentiality and information relating to journalists’ sources.

1  The Development of the Law

Public interest immunity was originally known as ‘Crown privilege’. This reflected the
fact that a claim to public interest immunity made by the Crown in proper form was
considered to be final and could not be overridden by the court. The principle applied
irrespective of whether the claim related to the contents of a particular document or to a
class of documents.5 In Conway v Rimmer,6 however, the House of Lords discarded this
old notion, holding that the court must be the final arbiter in relation to all public interest
immunity claims. The approach to be adopted is as follows. The court must, in the context
of the particular case, balance the considerations underlying public interest immunity
against the public interest in the fair administration of justice. If the latter outweighs the
former disclosure must be ordered.
What is at issue being public interest immunity rather than a private privilege, it is not
necessary that the question be raised by a party to the proceedings: ‘it must always be
open to any person interested to raise the question and there may be cases where the trial
judge should himself raise the question if no one else has done so’.7 Relatedly, public inter-
est immunity cannot be waived by a party to the proceedings.8
Subject to one possible exception,9 the court has a general power to inspect a document
that is subject to a public interest immunity claim in order to determine whether it should
be disclosed or whether, instead, the claim should be upheld. While judges have expressed
differing views on the basis on which the discretion to inspect is to be exercised,10 the
importance of inspection by the court in certain circumstances is clear.11 Indeed, as will
be seen in Section 5.3, the House of Lords may have accepted in a decision in 200412 that
inspection may be required in criminal cases.

4  See generally C Taylor, ‘What Next for Public Interest Immunity?’ (2005) 69 Journal of Criminal

Law 75.
5  Duncan v Cammell, Laird & Co [1942] AC 624. 6  [1968] AC 910.
7  R v Lewes JJ, ex p Home Sec [1973] AC 388, 400. See also Duncan v Cammell, Laird & Co [1942]

AC 624, 642.
8  R v Lewes JJ, ex p Home Sec [1973] AC 388; D v NSPCC [1978] AC 171.
9 See Balfour v Foreign Office [1994] 1 WLR 681, discussed in Section 3.
10  See, eg, Air Canada v Secretary of State for Trade [1983] 2 AC 394 in which Lord Fraser of Tullybelton,

Lord Edmund-Davies, and Lord Wilberforce took the view that it would be appropriate to inspect only
if the document was likely to support the case of the party seeking disclosure. Lord Scarman and Lord
Templeman, on the other hand, thought that it would be appropriate to inspect so long as the document was
likely to be necessary for a fair determination of the case.
11  See, eg, R v K (1992) 97 Cr App R 342 and Wallace Smith Trust Co v Deloitte [1996] 4 All ER 403, 413.
12  R v H [2004] UKHL 3, [2004] 2 WLR 335.
206
Public Interes t Immunit y and Rel ated Mat ters

2  ‘Class’ Claims and ‘Contents’ Claims

A ‘class claim’ to public interest immunity differs from a ‘contents claim’ in the sense
that the claim is said to arise by virtue of the class to which the particular document
belongs rather than the contents of the document. A class claim was at issue in R v Lewes
JJ, ex p Home Sec.13 The claim related to a letter to the Gaming Board about a person
who had applied to the Board for certificates of consent. The House of Lords noted: ‘The
claim in the present case is not based on the nature of the contents of this particular let-
ter. It is based on the fact that the board cannot adequately perform their statutory duty
unless they can preserve the confidentiality of all communications to them regarding the
character, reputation or antecedents of applicants for their consent.’14 Class claims can be
somewhat controversial and it has been accepted that ‘there is a heavy burden of proof
on any authority which makes such a claim’.15 It would also seem that there are certain
circumstances in which class claims may not be made. In Ex p Wiley, all the parties in
the House of Lords accepted, and the House agreed, that a class claim could not be made
in respect of documents created in the course of investigating a complaint about police
misconduct. The House left open the question, however, whether a class claim could be
made in relation to the actual reports of the investigating officers. In Taylor v Anderton,16
the Court of Appeal held that such a claim could indeed be made. The Court reached the
same conclusion in the later case of Kelly v Commissioner of Police of the Metropolis,17
where at issue were certain forms used by police forces and sent to the Crown Prosecution
Service following an investigation into a suspected criminal offence. The question for the
Court of Appeal was the extent to which public interest immunity attached to these forms
so as to inhibit their disclosure for the purposes of civil proceedings against the police
after the criminal proceedings had come to an end. It was held that the forms belonged to
a class of documents to which public interest immunity attached.
The Government announced in late 1996 that class claims would no longer be made
in relation to government documents.18 Rather, ministers would claim public interest
immunity only where it is believed that disclosure of a document would cause real dam-
age or harm to the public interest. This is very much to be welcomed, but the situation
is now somewhat anomalous in that, while ministers may no longer make class claims,
non-Government bodies such as the police may continue to do so in certain circum-
stances, as the decisions in Taylor and Kelly illustrate. What is required now is legislation
which makes the approach of the Government of general application.
We shall now examine a number of different contexts in which litigation concerning
public interest immunity has arisen.

3  National Security and Analogous Concerns

Public interest immunity may be claimed on the basis of national security, or the main-
tenance of good diplomatic relations and international comity.19 It has been seen earlier

13  [1973] AC 388. 14  [1973] AC 388, 400. 15  [1973] AC 388, 400.

16  [1995] 1 WLR 447. 17  The Times, 20 Aug 1997.
18  See generally G Ganz, ‘Volte-Face on Public Interest Immunity’ (1997) 60 Modern Law Review 552; M

Supperstone and J Coppel, ‘A New Approach to Public Interest Immunity?’ [1997] Public Law 211.
19  The decision of the House of Lords in Duncan v Cammell, Laird & Co [1942] AC 624 provides a clas-

sic illustration of a claim based on national security concerns. See also Hennessy v Wright (1888) 21 QBD
Proper Func tioning of the Public Service 207

that courts have a general discretion to inspect documents to determine whether they
should be disclosed or whether, instead, the claim to public interest immunity should be
upheld. There may, however, be an exception to this in the case of claims to public interest
immunity on the basis of risk to national security. The Court of Appeal held in Balfour v
Foreign Office that ‘once there is an actual or potential risk to national security demon-
strated by an appropriate certificate the court should not exercise its right to inspect’.20
Whether this is justifiable is debatable.
Public interest immunity may also be claimed in the interests of protection of good
diplomatic relations and international comity. In Buttes Oil Co v Hammer (No 3),21
Brightman LJ said:
In my view it is in the public interest of the United Kingdom that the contents of confi-
dential documents addressed to, or emanating from sovereign states, or concerning the
interests of sovereign states, arising in connection with an international territorial dispute
between sovereign states, shall not be ordered by the courts of this country to be disclosed
by a private litigant without the consent of the sovereign states concerned. I think that
such an immunity is a public interest of the United Kingdom and I  think that it out-
weighs the public interest that justice shall be administered on the basis of full disclosure
of all relevant unprivileged documents. It is analogous to, but is clearly distinguishable
from the public interest immunity which may attach to confidential documents of Her
Majesty’s Government. The resolution of a territorial dispute between sovereign states is a
political question and it is undesirable that an English court should be seen to be forcing
the disclosure of documents, prima facie of a confidential nature, for the ostensible pur-
pose of pronouncing, albeit indirectly, on the merits of such a dispute.22
In a similar vein, inter-departmental memoranda between officials in a foreign embassy
may also be subject to public interest immunity.23

4  Proper Functioning of the Public Service

The decision of the House of Lords in Ex p Wiley, as well as the earlier decisions of the
House in Conway v Rimmer,24 Burmah Oil Co v Bank of England,25 and Air Canada v
Secretary of State for Trade,26 provide authoritative judicial acknowledgement that consid-
erations pertaining to the proper functioning of departments of central government, or
the police, may found a claim of public interest immunity in appropriate circumstances.
But it is not just departments of central government or police departments which may be
entitled to claim public interest immunity. In D v NSPCC,27 the plaintiff claimed damages
from the NSPCC for the injury to her health caused by the negligence of the NSPCC in
pursuing the allegations of an informant that she had maltreated her child. These alle-
gations had proved groundless. The NSPCC argued that documents which revealed the

509; Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd [1916] 1 KB 822; R (Mohamed) v Foreign Secretary
(No 1) [2008] EWHC 2048 (Admin), [2009] 1 WLR 2579. Although the reasoning of the House of Lords
in Duncan was subsequently disapproved by the House in Conway v Rimmer, the view was expressed
in Conway that the actual result reached in Duncan was justifiable: [1968] AC 910, 938. See, however, M
Spencer, ‘Bureaucracy, National Security and Access to Justice: New Light on Duncan v Cammell Laird’
(2004) 55 Northern Ireland Legal Quarterly 277.
20  [1994] 1 WLR 681, 688. 21  [1981] QB 223.
22  [1981] QB 223, 265. The case was reversed on other grounds in [1982] AC 888.
23 Cf Fayed v Al-Tajir [1987] 2 All ER 396. 24  [1968] AC 910. 25  [1980] AC 1090.
26  [1983] 2 AC 394. 27  [1978] AC 171.
208
Public Interes t Immunit y and Rel ated Mat ters

informant’s identity were subject to public interest immunity. The House of Lords agreed,
holding that the public interest in protecting the flow of information justified the refusal
to order disclosure of the documents, since a consequence of disclosure might well be that
the NSPCC’s sources of information would dry up. The significance of this case, as Lord
Woolf put it in Ex p Wiley, ‘is that it made clear that the immunity does not only exist
to protect the effective functioning of departments or organs of central government or
the police, but also could protect the effective functioning of an organisation such as the
NSPCC which was authorised under an Act of Parliament to bring legal proceedings for
the welfare of children’.28
Other bodies which have been acknowledged by the courts as being able to claim public
interest immunity in appropriate circumstances include local authorities, 29 the Gaming
Board,30 the Customs and Excise Commissioners, 31 and the Law Society.32

5  Criminal Cases
Traditionally, the issue of public interest immunity has tended to arise in non-criminal
litigation. In more recent times, however, it has had to be considered in a number of crimi-
nal cases, of which the Matrix Churchill case is perhaps the best known. In the crimi-
nal sphere, the issue of public interest immunity acquires a special dimension. Where
the defence is seeking disclosure of information held by the prosecution, a decision not
to order disclosure may well result in the withholding of information which shows the
defendant’s innocence. The right of the defendant not to be convicted of an offence of
which he or she is innocent may accordingly be compromised. Whether the approach
of performing a ‘balancing exercise’ that is adopted by the civil courts is a meaningful
approach in the criminal context may be questioned.
We shall examine now the two main contexts in which public interest immunity dis-
putes in criminal cases have arisen: the disclosure of the identity of police informers, and
the disclosure of the location of police observation points.

5.1  Disclosure of the Identity of Police Informers

The identity of police informers may be protected by public interest immunity.33 The
rationale for this long-established34 principle was vividly described by McLachlin J in a
decision of the Supreme Court of Canada:
[The principle] is an ancient and hallowed protection which plays a vital role in law
enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The
discharge of this duty carries with it the risk of retribution from those involved in crime.

28  [1995] 1 AC 274, 291.

29  In re D (Infants) [1970] 1 WLR 599; Gaskin v Liverpool Council [1980] 1 WLR 1549; R v City of
Birmingham DC, ex p O [1982] 2 All ER 356; Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36.
30  R v Lewes JJ, ex p Home Sec [1973] AC 388.
31  Norwich Pharmacal v Customs & Excise [1974] AC 133; A Crompton Ltd v Customs & Excise [1974]

AC 405.
32  Buckley v Law Society (No 2) [1984] 3 All ER 313.
33  See generally H Mares, ‘Balancing Public Interest and a Fair Trial in Police Informer Privilege: A Critical

Australian Perspective’ (2002) 6 International Journal of Evidence and Proof 94; C Taylor, ‘In the Public
Interest: Public Interest Immunity and Police Informants’ (2001) 65 Journal of Criminal Law 435.
34 See A-G v Briant (1846) 15 M & W 169, 185; 153 ER 808, 815: ‘This has been a settled rule for fifty years’.
Criminal C a ses 209

The [principle] was developed to protect citizens who assist in law enforcement and to
encourage others to do the same.35
In determining whether disclosure should be ordered the courts use the language of a
balancing exercise but, as the following quotation indicates, where the material would
clearly be helpful to the defence there is no question of this interest being counterbal-
anced by other asserted public interests. The judge has an important function in deter-
mining the potential effect of the material on the conduct of the defence case but if it is
found that denial of access to the material would render any trial unfair the judge has no
choice but to order disclosure:
If the disputed material may prove the defendant’s innocence or avoid a miscarriage of
justice, then the balance comes down resoundingly in favour of disclosing it. . . . the judge
has to perform the balancing exercise by having regard on the one hand to the weight of
the public interest in non-disclosure. On the other hand, he must consider the importance
of the documents to the issues of interest to the defence, present and potential, so far as
they have been disclosed to him or he can foresee them. Accordingly, the more full and
specific the indication the defendant’s lawyers give of the defence or issues they are likely
to raise, the more accurately both prosecution and judge will be able to discuss the value
to the defence of the material.36
The Court of Appeal has noted
an increasing tendency for defendants to seek disclosure of informants’ names and
roles, alleging that those details are essential to the defence. Defences that the accused
has been set up, and allegations of duress, which used at one time to be rare, have mul-
tiplied. We wish to alert judges to the need to scrutinise applications for disclosure of
details about informants with very great care. They will need to be astute to see that
assertions of a need to know such details, because they are essential to the running of
the defence, are justified. If they are not so justified, then the judge will need to adopt a
robust approach in declining to order disclosure. Clearly, there is a distinction between
cases in which the circumstances raise no reasonable possibility that information about
the informant will bear upon the issues and cases where it will. Again, there will be
cases where the informant is an informant and no more; other cases where he may
have participated in the events constituting, surrounding, or following the crime. Even
when the informant has participated, the judge will need to consider whether his role
so impinges on an issue of interest to the defence, present or potential, as to make dis-
closure necessary. 37
The Court of Appeal has held that a police informer wishing to sacrifice his or her ano-
nymity is not automatically prevented by the doctrine of public interest immunity from
doing so: ‘if a police informer wishes personally to sacrifice his own anonymity, he is not
precluded from doing so by the automatic application of the principle of public inter-
est immunity. . . . This follows, not from waiver of privilege attaching personally to the

35  R v Leipert (1997) 143 DLR (4th) 38, 43–4. See also D v NSPCC [1978] AC 171; R v Hennessey (1978) 68

Cr App R 419, 426.
36  R v Keane [1994] 1 WLR 746, 751–2. See also Marks v Beyfus (1890) 25 QBD 494, 499–500. A similar

approach is taken in Canada:  R v Leipert (1997) 143 DLR (4th) 38. Interestingly, the Supreme Court of
Canada took the view that, if a decision of non-disclosure was reached on the basis of an appropriate appli-
cation of the balancing exercise, this would automatically mean that the accused’s right to make full answer
and defence under the Canadian Charter of Rights and Freedoms was not infringed. See also R v Named
Person B 2013 SCC 9, [2013] 1 SCR 405; Canada (Citizenship and Immigration) v Harkat 2014 SCC 37.
37  R v Turner [1995] 1 WLR 264, 267.
210
Public Interes t Immunit y and Rel ated Mat ters

informer, but from the disappearance of the primary justification for the claim for public
interest immunity.’ It may, however, be possible to ‘infer, for example, that disclosure
might assist others involved in criminal activities, or reveal police methods of investi-
gation, or hamper their operations, or indicate the state of their inquiries into any par-
ticular crime, or even that the police are in possession of information which suggests
extreme and urgent danger to the informer if he were to proceed. Considerations such as
these might, in an appropriate case, ultimately tip the balance in favour of preserving the
informer’s anonymity against his wishes in the public interest.’38
It should be noted that, in a criminal case, the Crown Prosecution Service may be
able to disclose voluntarily to the defence, without obtaining a court order, documents
in respect of which a class claim to public interest immunity can be made. However, the
prior express written approval of the Treasury Solicitor to the voluntary disclosure must
be obtained. To seek such approval the CPS should submit to the Treasury Solicitor cop-
ies of the relevant documents, identify the public interest immunity class into which they
fall, and indicate the materiality of the documents to the proceedings.
Before giving his approval, the Treasury Solicitor should consult any other relevant gov-
ernment department and satisfy himself that the balance in his view falls clearly in favour
of disclosing the documents. In making that assessment he will inevitably have regard,
inter alia, to (a) the particular class of documents involved, (b) their materiality to the
proceedings and (c) the extent to which disclosure will damage the public interest in the
integrity of the class claim. The Treasury Solicitor should be the readier to approve dis-
closure of documents likely to assist the defence case than those which the CPS wish to
disclose with a view to furthering the interests of the prosecution.39

5.2  Disclosure of the Location of Police Observation Points

The extent to which the police are required to disclose the location of premises used by
them for surveillance purposes was considered in detail in R v Johnson:
At the heart of this problem is the desirability, as far as that can properly be given, of
re-assuring people who are asked to help the police that their identities will never be dis-
closed lest they become the victims of reprisals by wrongdoers for performing a public
service.
The minimum evidential requirements seem to us to be the following.
(a) The police officer in charge of the observations to be conducted, no one of lower
rank than a sergeant should usually be acceptable for this purpose, must be able to
testify that beforehand he visited all observation places to be used and ascertained
the attitude of occupiers of premises, not only to the use to be made of them, but to
the possible disclosure thereafter of the use made and facts which could lead to the
identification of the premises thereafter and of the occupiers. He may of course in
addition inform the court of difficulties, if any, usually encountered in the particular
locality of obtaining assistance from the public.
(b) A police officer of no lower rank than a chief inspector must be able to testify that
immediately prior to the trial he visited the places used for observations, the results
of which it is proposed to give in evidence, and ascertained whether the occupiers are
the same as when the observations took place and whether they are or are not, what

38  Savage v Chief Constable of Hampshire [1997] 2 All ER 631, 636.

39  R v Horseferry Road Magistrates’ Court, ex p Bennett (No 2) [1994] 1 All ER 289, 297.
Criminal C a ses 211

the attitude of those occupiers is to the possible disclosure of the use previously made of
the premises and of facts which could lead at the trial to identification of premises and
occupiers.
Such evidence will of course be given in the absence of the jury when the application to
exclude the material evidence is made. The judge should explain to the jury . . . when summing
up or at some appropriate time before that, the effect of his ruling to exclude, if he so rules.40
In Blake v DPP,41 it was held that fear of harassment, as opposed to violence, by the occupi-
ers of the premises is a sufficient basis for a public interest immunity claim.42

5.3  The Scott Report

The Scott Report identified uncertainty about the scope of public interest immunity
in criminal cases as one of the root causes of the miscarriage of justice in the Matrix
Churchill case. With this in mind, Sir Richard Scott sought to set out the rules which he
believed governed the issue. These include the following:
(ii) PII claims on a class basis should not in future be made. PII contents claims should
not be made in respect of documents which it is apparent are documents which
might be of assistance to the defence. . . . 
(viii) . . . the judge should be asked to decide whether the documents might be of assistance
to the defence. If a document satisfies this test, the document ought not to be with-
held from a defendant on PII grounds. There is no true balance to be struck. The
weight of public interest factors underlying the PII claim is immaterial. However,
existing authority, with its apparent endorsement of the ‘balancing exercise’ while
at the same time requiring the disclosure of any document which ‘may prove the
defendant’s innocence to avoid a miscarriage of justice’, suffers, in my opinion, from
some degree of ambiguity. It would be important, in my opinion, if disclosure of a
material document is to be withheld, that the defendant should know whether the
decision was based on the judge’s conclusion that the document would not be of
any assistance to the defence or on the judge’s conclusion that, despite meeting that
test, the weight of public interest factors precludes disclosure. The latter conclusion
would, in my opinion, be wrong in principle and contrary to authority. . . . 
(x) If the documents, although relevant and prima facie disclosable, do not appear to
be documents that might assist the defence, the judge may conclude that in view
of the public interest factors underlying the PII claim, the documents need not be
disclosed.43
There may be much to be said for Scott’s argument that it is meaningless, in the context
of criminal litigation, to speak in terms of a ‘balancing exercise’. Scott’s contention
that class claims are inappropriate in criminal cases is echoed by Leigh,44 who also

40  [1988] 1 WLR 1377, 1385–6. See also R v Rankine [1986] QB 861; R v Hewitt (1991) 95 Cr App R 81.
41  (1992) 97 Cr App R 169.
42  For a comparative perspective see J Burchill, ‘Keeping Secrets: Surveillance Post Privilege’ (2011) 90

Canadian Bar Review 601.

43  R Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and

Related Prosecutions (1996) 1789–91. See also R Scott, ‘The Acceptable and Unacceptable Use of Public
Interest Immunity’ [1996] Public Law 427.
44  I Leigh, ‘Reforming Public Interest Immunity’ in M J Allen (ed), Web Journal of Current Legal Issues

Yearbook 1995 (1996).

212
Public Interes t Immunit y and Rel ated Mat ters

argues that ‘a mandatory statutory requirement of judicial inspection should apply to

PII claims in criminal proceedings’.45 It is disappointing that in its 2004 decision in
R v H the House of Lords did not take the opportunity to dispel uncertainty in this
area. A close reading of the itemized guidance provided in this decision46 shows the
House strongly implying, however, that in a criminal case the material in question
must be inspected by the judge (it was said that the issue of what the material is that
the prosecution seeks to withhold ‘must be considered by the court in detail’), and
also that the ultimate goal is to ensure that the trial process, viewed as a whole, is fair
to the defendant.

6  Procedure
6.1  Civil Cases
Rule 31.19(1) of the Civil Procedure Rules provides: ‘A person may apply, without notice,
for an order permitting him to withhold disclosure of a document on the ground that
disclosure would damage the public interest.’ The application ‘must be supported by
evidence’.47 For the purpose of determining the application the court may require the
person seeking to withhold disclosure to produce the document to the court, and invite
any person (whether a party or not) to make representations.48

6.2  Criminal Cases
Previously governed by the common law,49 the approach in criminal cases was later
encapsulated in the Crown Court (Criminal Procedure and Investigations Act
1996) (Disclosure) Rules 1997 and in the Magistrates’ Courts (Criminal Procedure and
Investigations Act 1996) (Disclosure) Rules 1997, and is now encapsulated in the Criminal
Procedure Rules 2014.50
The general rule is that any application by the prosecution to withhold material on
the grounds of public interest immunity must be made in writing, 51 with the application
being served on ‘the defendant, but only to the extent that serving it on the defendant
would not disclose what the prosecutor thinks ought not be disclosed’. 52 ‘The application
must . . . omit from any part of the application that is served on the defendant anything
that would disclose what the prosecutor thinks ought not be disclosed’.53 ‘The court must
determine the application at a hearing which[,]‌ . . . if the court so directs, may take place,
wholly or in part, in the defendant’s absence.’54

45  I Leigh, ‘Reforming Public Interest Immunity’ in M J Allen (ed), Web Journal of Current Legal Issues

Yearbook 1995 (1996) 104.

46  R v H [2004] UKHL 3, [2004] 2 WLR 335 at [36]. Quoted at text accompanying footnote 61.
47  Civil Procedure Rules, rule 31.19(7). 48  Civil Procedure Rules, rule 31.19(6).
49 See R v Davis [1993] 1 WLR 613, 617–18.
50  See also, on Crown Court trials, R v Menga [1998] Crim LR 58, and, on summary trials, F G Davies,

‘Procedural Unfairness Arising from Public Interest Immunity Applications: Part I’ (1997) 161 Justice of the
Peace 951; F G Davies, ‘Procedural Unfairness Arising from Public Interest Immunity Applications: Part II’
(1997) 161 Justice of the Peace 971.
51  Criminal Procedure Rules 2014, rule 22.3(2)(a).
52  Criminal Procedure Rules 2014, rule 22.3(2)(b)(iii).
53  Criminal Procedure Rules 2014, rule 22.3(3)(b).
54  Criminal Procedure Rules 2014, rule 22.3(6)(b).
Procedure 213

Concern has been expressed about the inability of the defence to make representa-
tions to the court in certain circumstances. It has been suggested that a solution would
be to appoint ‘special counsel’ to represent the interests of the defence. Such a person
‘may not disclose to the subject of the proceedings the secret material disclosed to him,
and is not in the ordinary sense professionally responsible to that party, but . . ., subject
to those constraints, is charged to represent that party’s interests’. 55 The use of special
counsel has been permitted, for example, in proceedings concerning the exclusion or
removal of a person as being conducive to the public good or in the interests of national
security.56 On the appropriateness of using special counsel in public interest immunity
hearings in criminal cases, the House of Lords stated authoritatively in R v H, 57 in a
passage quoted by the Grand Chamber of the European Court of Human Rights in
Edwards and Lewis v UK:58
There is as yet little express sanction in domestic legislation or domestic legal authority
for the appointment of a special advocate or special counsel to represent, as an advo-
cate in PII matters, a defendant in an ordinary criminal trial . . . But . . . cases will arise in
which the appointment of an approved advocate as special counsel is necessary, in the
interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such
an appointment does however raise ethical problems, since a lawyer who cannot take full
instructions from his client, nor report to his client, who is not responsible to his client
and whose relationship with the client lacks the quality of confidence inherent in any
ordinary lawyer–client relationship, is acting in a way hitherto unknown to the legal
profession. While not insuperable, these problems should not be ignored, since neither
the defendant nor the public will be fully aware of what is being done. The appointment
is also likely to cause practical problems: of delay, while the special counsel familiar-
ises himself with the detail of what is likely to be a complex case; of expense, since the
introduction of an additional, high-quality advocate must add significantly to the cost
of the case; and of continuing review, since it will not be easy for a special counsel to
assist the court in its continuing duty to review disclosure, unless the special counsel is
present throughout or is instructed from time to time when need arises. Defendants fac-
ing serious charges frequently have little inclination to co-operate in a process likely to
culminate in their conviction, and any new procedure can offer opportunities capable of
exploitation to obstruct and delay. None of these problems should deter the court from
appointing special counsel where the interests of justice are shown to require it. But the
need must be shown. Such an appointment will always be exceptional, never automatic;
a course of last and never first resort. It should not be ordered unless and until the trial
judge is satisfied that no other course will adequately meet the overriding requirement of
fairness to the defendant.59

55  R v H [2004] UKHL 3, [2004] 2 WLR 335 at [21].

56  Pursuant to the Special Immigration Appeals Commission Act 1997, s 6; Special Immigration Appeals
Commission (Procedure) Rules 2003, rule 34. See also R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2
AC 738; R (AHK) v Home Secretary [2009] EWCA Civ 287, [2009] 1 WLR 2049.
57  [2004] UKHL 3, [2004] 2 WLR 335. See generally N Blake, ‘Special Advocates in Criminal Trials’

(2004) 154 New Law Journal 233; A Boon and S Nash, ‘Special Advocacy:  Political Expediency and
Legal Roles in Modern Judicial Systems’ (2006) 9 Legal Ethics 101; M Caplan and S Parkinson, ‘Testing
the PII Template’ (2004) 154 New Law Journal 238; M Rea, ‘Golden Rules’ (2004) 148 Solicitors’ Journal
314; C Taylor, ‘The Courts and Applications for Public Interest Immunity:  R v H and C’ (2004) 8
International Journal of Evidence and Proof 179. For an Australian perspective see T Glover, ‘Public
Interest Immunity Claims in National Security Trials and the Role of Special Counsel’ (2009) 33
Criminal Law Journal 309.
58  (2004) 40 EHRR 24 at [45]. 59  R v H [2004] UKHL 3, [2004] 2 WLR 335 at [22].
214
Public Interes t Immunit y and Rel ated Mat ters

The House of Lords also observed in R v H: ‘The occasions on which it will be appropriate to
appoint special counsel in the magistrates’ court will be even rarer than in the crown court.’60
More generally, the House of Lords has made it clear that, properly implemented, the
established procedures for dealing with public interest immunity applications made by
the prosecution are compliant with the right to a fair trial under Article 6. The following
detailed guidance is provided in R v H:
When any issue of derogation from the golden rule of full disclosure comes before it, the
court must address a series of questions:
(1) What is the material which the prosecution seek to withhold? This must be consid-
ered by the court in detail.
(2) Is the material such as may weaken the prosecution case or strengthen that of the
defence? If No, disclosure should not be ordered. If Yes, full disclosure should (sub-
ject to (3), (4) and (5) below) be ordered.
(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what)
if full disclosure of the material is ordered? If No, full disclosure should be ordered.
(4) If the answer to (2) and (3) is Yes, can the defendant’s interest be protected without
disclosure or disclosure be ordered to an extent or in a way which will give adequate
protection to the public interest in question and also afford adequate protection to
the interests of the defence?
  This question requires the court to consider, with specific reference to the material
which the prosecution seek to withhold and the facts of the case and the defence as
disclosed, whether the prosecution should formally admit what the defence seek to
establish or whether disclosure short of full disclosure may be ordered. This may be
done in appropriate cases by the preparation of summaries or extracts of evidence,
or the provision of documents in an edited or anonymised form, provided the docu-
ments supplied are in each instance approved by the judge. In appropriate cases the
appointment of special counsel may be a necessary step to ensure that the conten-
tions of the prosecution are tested and the interests of the defendant protected . . . In
cases of exceptional difficulty the court may require the appointment of special
counsel to ensure a correct answer to questions (2) and (3) as well as (4).
(5) Do the measures proposed in answer to (4) represent the minimum derogation nec-
essary to protect the public interest in question? If No, the court should order such
greater disclosure as will represent the minimum derogation from the golden rule of
full disclosure.
(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the
trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure
should be ordered even if this leads or may lead the prosecution to discontinue the
proceedings so as to avoid having to make disclosure.
(7) If the answer to (6) when first given is No, does that remain the correct answer as the
trial unfolds, evidence is adduced and the defence advanced?
  It is important that the answer to (6) should not be treated as a final, once-and-for-
all, answer but as a provisional answer which the court must keep under review.61

60 [2004] UKHL 3, [2004] 2 WLR 335 at [44].

61  [2004]UKHL 3, [2004] 2 WLR 335 at [36]. See also R v Austin (Herbert) [2013] EWCA Crim 1028,
[2014] 1 WLR 1045.
The Freedom of Information Ac t 20 0 0 215

Significantly, the House of Lords takes the view that, in a case where the defence is not
even permitted to be informed that a public interest immunity application is being made,
and ‘the material to be withheld is of significant help to the defendant, there must be
a very serious question whether the prosecution should proceed, since special counsel,
even if appointed, cannot then receive any instructions from the defence at all’.62
The Court of Appeal has clarified its approach to appeals relating to public interest
immunity hearings in the Crown Court:
it seems to us that the following principles should, generally speaking, guide the conduct
of appeals to this Court which raise issues as to the trial judge’s conduct of a Public Interest
Immunity hearing:
1. The approach should be the same whether the ex parte PII hearing before the judge was
or was not on notice. The principles in relation to the appointment of Special Counsel,
or the need for the judge to recuse himself or herself are the same in both cases.
2. The Court of Appeal (Criminal Division) will have to review ex parte with the pros-
ecution present all the material which was before the trial judge. A prosecution sum-
mary will not usually suffice, but is always desirable and, in a complex case, essential.
3. It will be necessary for that review to be carried out by the same constitution which is
to hear the appeal.
4. The review will have to take place sufficiently in advance of the substantive appeal
hearing to permit, in those exceptional cases where this is necessary, Special Counsel
to be appointed and suitably prepared.
5. In the majority of cases, where the Public Interest Immunity material can be read
in an hour or two, this should present no listing difficulty and the Public Interest
Immunity hearing can take place . . . in the first week of a constitution sitting with the
appeal being heard in the third week.
6. In the minority of cases, where the PII material is unusually voluminous, special list-
ing arrangements will have to be made over a longer time scale.63

7  The Freedom of Information Act 2000

The doctrine of public interest immunity stands alongside, and probably overlaps sub-
stantially with, the operation of the Freedom of Information Act 2000.64 In essence, the
Act provides a general right of access to information held by public authorities.65 There
are, however, a number of exemptions from the general duty to disclose information.
Many of these closely mirror the circumstances in which it may be possible for public
interest immunity to be claimed. A few of the exemptions in the Act are specified to
be absolute exemptions. In the case of all the other exemptions disclosure must not

62  R v H [2004] UKHL 3, [2004] 2 WLR 335 at [37].

63  R v McDonald [2004] EWCA Crim 2614 at [25].
64  See generally D Basu, ‘Freedom of Information—Part 1’ (2004) 154 New Law Journal 1624; P Birkinshaw,

‘Open All Hours: The Impact of the Labour Government’s Legislation on Freedom of Information’ (2001) 54
Current Legal Problems 179; T Cornford, ‘The Freedom of Information Act 2000: Genuine or Sham?’ [2001]
3 Web Journal of Current Legal Issues; G Vassall-Adams, ‘The Freedom of Information Act 2000 Explained’
[Jan 2005] Legal Action 15; J Macdonald, R Crail, and C H Jones, The Law of Freedom of Information
(2nd ed 2009).
65 S 1.
216
Public Interes t Immunit y and Rel ated Mat ters

be made if, ‘in all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information’.66 It can be seen
that this is in essence the balancing test applied in determining public interest immu-
nity claims.

8  Confidentiality
Certain relationships—such as the relationship between doctor and patient, priest
and penitent, banker and customer, or journalist and source—are carried on with the
expectation that they are confidential relationships. It would appear that, while such
relationships are not protected by the doctrine of public interest immunity as such,
a similar balancing test is to be applied in determining whether disclosure should be
ordered:
1. There is no principle of public interest immunity . . . protecting . . . confidential
documents . . . 
2. There is no principle in English law by which documents are protected from [disclo-
sure] by reason of confidentiality alone. But there is no reason why, in the exercise of
its discretion to order [disclosure], the tribunal should not have regard to the fact that
documents are confidential, and that to order disclosure would involve a breach of
confidence. . . . 
4. The ultimate test . . . is whether [disclosure] is necessary for disposing fairly of the pro-
ceedings. If it is, then [disclosure] must be ordered notwithstanding confidentiality.
But where the court is impressed with the need to preserve confidentiality in a par-
ticular case, it will consider carefully whether the necessary information has been or
can be obtained by other means, not involving a breach of confidence.
5. In order to reach a conclusion whether [disclosure] is necessary notwithstanding
confidentiality the tribunal should inspect the documents. It will naturally consider
whether justice can be done by special measures such as ‘covering up’, substituting
anonymous references for specific names, or, in rare cases, hearing in camera.
6. The procedure by which this process is to be carried out is one for tribunals to work
out in a manner which will avoid delay and unnecessary applications.67

9  The Contempt of Court Act 1981, Section 10

A specific statutory provision, section 10 of the Contempt of Court Act 1981, governs the
disclosure of sources of information contained in publications:
No court may require a person to disclose, nor is any person guilty of contempt of court
for refusing to disclose, the source of information contained in a publication for which
he is responsible, unless it be established to the satisfaction of the court that disclosure

66  S 2(2)(b).
67  Science Research Council v Nassé [1980] AC 1028, 1065–6. See also Lonrho PLC v Fayed (No 4) [1994] 2
WLR 209; Wallace Smith Trust Co v Deloitte [1996] 4 All ER 403, 412–13; Pharaon v BCCI SA (in liquidation)
[1998] 4 All ER 455, 469 (‘it is well settled that the public interest in upholding the duty of confidentiality
existing between banker and customer, as well as the duty of confidentiality that can exist in other contexts,
is subject to being overridden by a greater public interest’).
The Contemp t of Court Ac t 1981, Sec tion 10 217

is necessary in the interests of justice or national security or for the prevention of dis-
order or crime.
This provision was the subject of detailed consideration by the House of Lords in X Ltd
v Morgan-Grampian Ltd.68 Goodwin, a trainee journalist on the staff of The Engineer,
which was published by Morgan-Grampian Ltd, was telephoned by a person who
informed him that a company, Tetra Ltd, was in the process of raising a £5 million loan
and had financial problems as a result of an expected loss of £2,100,000 for 1989 on a
turnover of £20,300,000. This information came from a draft of Tetra Ltd’s confidential
corporate plan, a copy of which had been stolen. On application by Tetra Ltd, the High
Court ordered that Goodwin disclose the identity of his source on the ground that such
disclosure was ‘necessary in the interests of justice’ under section 10. The House of Lords
agreed with the lower courts that disclosure in this case was ‘necessary in the interests
of justice’. Following the decision of the House of Lords, the High Court fined Goodwin
£5,000 for contempt of court.
Goodwin took the case to the European Court of Human Rights,69 alleging a breach of
Article 10 of the European Convention on Human Rights, which provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This [A]‌r ticle shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for maintain-
ing the authority and impartiality of the judiciary.70
Thus the purport of Article 10 is that, even if there is a prima facie violation of the right to
freedom of expression under paragraph 1, this violation may be justified under paragraph 2,
with the result that Article 10 will not ultimately be breached.
The European Court found a breach of Article 10 in Goodwin, taking the view that the
interference with his right could not be justified under paragraph 2:
As a matter of general principle, the ‘necessity’ for any restriction on freedom of expres-
sion must be convincingly established. . . . the interest of democratic society in ensuring
and maintaining a free press . . . will weigh heavily in the balance in determining, as must
be done under Article 10(2), whether the restriction was proportionate to the legitimate
aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the
most careful scrutiny by the Court. . . . 
. . . On the facts of the present case, the Court cannot find that Tetra’s interests in elimi-
nating, by proceedings against the source, the residual threat of damage through dis-
semination of the confidential information otherwise than by the press, in obtaining

68  [1991] 1 AC 1.

69  Goodwin v UK (1996) 22 EHRR 123. See generally S Nash, ‘Freedom of Expression, Disclosure of
Journalists’ Sources and the European Court of Human Rights:  Goodwin v United Kingdom’ (1997) 1
International Journal of Evidence and Proof 410.
70  See generally Freedom of Expression: Essays in Honour of Nicolas Bratza, President of the European

Court of Human Rights (2012).

218
Public Interes t Immunit y and Rel ated Mat ters

compensation and in unmasking a disloyal employee or collaborator were, even if consid-

ered cumulatively, sufficient to outweigh the vital public interest in the protection of the
applicant journalist’s source. . . . 
In sum, there was not, in the Court’s view, a reasonable relationship of proportional-
ity between the legitimate aim pursued by the disclosure order and the means deployed
to achieve that aim. The restriction which the disclosure order entailed on the applicant
journalist’s exercise of his freedom of expression cannot therefore be regarded as having
been necessary in a democratic society, within the meaning of Article 10(2), for the pro-
tection of Tetra’s rights under English law . . . 
Accordingly, the Court concludes that both the order requiring the applicant to reveal
his source and the fine imposed upon him for having refused to do so gave rise to a viola-
tion of his right to freedom of expression under Article 10.71
The Court of Appeal72 subsequently considered the issue in Camelot Group v Centaur
Ltd,73 taking the view that the fact that the European Court in Goodwin had reached a
different conclusion from that reached by the House of Lords did not necessarily indicate
that it had taken a different approach. In truth, ‘the tests which the Court of Human
Rights and the House of Lords applied were substantially the same’, and the fact that
different conclusions were reached ‘is a no more surprising legal phenomenon than this
court concluding that a particular course of conduct amounted to negligence when the
court of first instance concluded that the very same course of conduct did not amount to
negligence’.74 In any event, ‘there was a lapse of six years between the performance of the
balancing exercise in London and in Strasbourg. In such a period standards fundamental
to the performance of the balancing exercise may change materially.’75 In Camelot itself,
the plaintiff company, which was authorized to run the National Lottery, had intended
to publish final accounts on 3 June 1997. An unidentified employee had, however, leaked
a copy of the draft accounts to a journalist employed by the defendant, which published
an article disclosing their contents on 28 May 1997. In order to assist it in identifying the
source of the leaked information, the plaintiff obtained an order requiring the defendant
to deliver up to the plaintiff the draft accounts and any other confidential information of
which it was in possession or to which it had access. The Court of Appeal held that this
order had been correctly made. The Court noted that, while the order was not in terms
an order requiring disclosure of the source of information, it was clear that disclosure or
facilitation of disclosure would be the effect of the order. Section 10 of the Contempt of
Court Act 1981 was, therefore, applicable.76 In considering section 10, ‘a relevant but not
conclusive factor is that an employer may wish to identify the employee so as to exclude
him from future employment’. The Court considered this to be a factor which, even
standing alone, could in some cases be strong enough to outweigh the important public
interest in the ability of the press to protect the anonymity of its sources.77 Also relevant
in this case, however, was the existence of ‘unease and suspicion amongst the employees
of the company which inhibits good working relationships. Clearly there is a risk that
an employee who has proved untrustworthy in one regard may be untrustworthy in a
different respect and reveal the name of, say, a public figure who has won a huge lottery

71  (1996) 22 EHRR 123 at [40]–[46].

72  See also the decision of the Chancery Division in Michael O’Mara Books Ltd v Express Newspapers plc
[1999] FSR 49.
73  [1998] 1 All ER 251. See generally T R S Allan, ‘Journalists’ Sources and Disloyal Employees: Discretion,

Fact and Judgement’ [1998] Cambridge Law Journal 235.

74  [1998] 1 All ER 251, 259 (italics in original). 75  [1998] 1 All ER 251, 262.
76  [1998] 1 All ER 251, 256.    77  [1998] 1 All ER 251, 258.
Summary and Conclusion 219

prize.’78 In the result, therefore, ‘the public interest in enabling the plaintiffs to discover
a disloyal employee in their midst who leaked the confidential information which he did
leak was greater than the public interest in enabling him to escape detection’.79
It would appear that another relevant factor in the determination of whether disclosure
would be in the interests of justice is whether attempts have been made to identify the
source by other means:
To an extent, whether disclosure of a source is ‘necessary’ in the interests of justice can
depend on whether the person seeking disclosure has made any attempt other than by
applying to the court to find the source for himself and whether any such attempts, were
they to be made, would have had any real prospects of making the compulsion of a court
order unnecessary. . . . the making of such attempts is [not] a necessary precondition of
the court’s assistance, but its absence can be a powerful, even a decisive, factor against the
intervention of the court . . .80
The House of Lords subsequently confirmed that the approach of the European Court
to Article 10 in Goodwin v UK ‘can be applied equally to section 10 now that [A]‌r ticle 10
is part of our domestic law’.81 Later, in Financial Times Ltd v UK, the European Court of
Human Rights found ‘that, as in the Goodwin case, [a company’s] interests in eliminat-
ing, by proceedings against [an anonymous source], the threat of damage through future
dissemination of confidential information and in obtaining damages for past breaches
of confidence were, even if considered cumulatively, insufficient to outweigh the public
interest in the protection of journalists’ sources’.82

10  Summary and Conclusion

A ‘balancing test’ is to be applied in determining whether a claim to public interest
immunity should be upheld. The doctrine of public interest immunity has proved par-
ticularly controversial in criminal cases, where the potential for a violation of Article 6 of
the European Convention on Human Rights arises. Raising particular concern in crimi-
nal cases have been issues surrounding the use of ex parte hearings and the involvement
of special counsel. The chapter also considered two related matters: the approach taken to
confidential relationships, and the extent to which the sources of information contained

78 [1998] 1 All ER 251, 261.

79 [1998] 1 All ER 251, 262.
80  Saunders v Punch Ltd [1998] 1 All ER 234, 245.
81  Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033 at [38]. See generally

M Amos, ‘A Storm Brewing’ (2002) 152 New Law Journal 1230; J Schöpflin, ‘Protection Racket’ (2002) 146
Solicitors’ Journal 628. See also Mersey Care NHS Trust v Ackroyd (No 2) [2007] EWCA Civ 101, [2008]
EMLR 1, [2007] HRLR 19, where the Court of Appeal observed (at [36]): ‘The balancing of the considera-
tions which are relevant to the question whether it was necessary and proportionate to order the disclosure
of the journalist’s source is essentially a matter for the judge and not for an appellate court. This court
should respect his decision unless it is persuaded that he erred in principle or reached a conclusion that
was plainly wrong; that is a conclusion which was outside the ambit of conclusions which a judge could
reasonably reach.’
82  (2009) 50 EHRR 46 at [71]. See also the decisions of the Supreme Court of Canada in R v National Post

2010 SCC 16, [2010] 1 SCR 477; Globe and Mail v Canada (Attorney General) 2010 SCC 41, [2010] 2 SCR
592. For discussion of the US position see D Abramowicz, ‘Calculating the Public Interest in Protecting
Journalists’ Confidential Sources’ (2008) 108 Columbia Law Review 1949; S Wallace, ‘The Journalist–Source
Relationship in Context: A Comparative Review of US and English Law’ (2009) 38 Common Law World
Review 268.
220
Public Interes t Immunit y and Rel ated Mat ters

in publications may be required to be disclosed (the latter being governed by both section
10 of the Contempt of Court Act 1981 and Article 10 of the Convention).

Further Reading
A Boon and S Nash, ‘Special Advocacy:  Political Expediency and Legal Roles in Modern
Judicial Systems’ (2006) 9 Legal Ethics 101
R Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to
Iraq and Related Prosecutions (1996)
C Taylor, ‘What Next for Public Interest Immunity?’ (2005) 69 Journal of Criminal Law 75
9
Legal Professional Privilege

1  The Concept of Privilege

‘Privilege’ is ‘the right of a party to refuse to disclose a document or produce a document
or to refuse to answer questions on the ground of some special interest recognised by
law’.1 Generally, therefore, a person entitled to claim privilege is not required to disclose
the privileged material or to give evidence of that material. Such material is allowed to
be withheld not because of its actual or potential unreliability, but rather, as in the case
of material subject to public interest immunity, because of considerations of extrinsic
policy. There are three main categories of privilege, sometimes termed the ‘heads of privi-
lege’: (1) the privilege against self-incrimination; (2) ‘without prejudice’ negotiations; and
(3) legal professional privilege. The focus of this chapter is on an examination of legal pro-
fessional privilege. A few words will now be said, however, about the two other categories
of privilege.

2  The Privilege against Self-Incrimination

The privilege against self-incrimination permits a witness in a trial to refuse to answer
questions in certain circumstances. In Blunt v Park Lane Hotel Ltd Goddard LJ stated that
‘the rule is that no one is bound to answer any question if the answer thereto would, in
the opinion of the judge, have a tendency to expose the deponent to any criminal charge,
penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued
for’.2 It is necessary
that before acceding to a claim to [the privilege against self-incrimination] the court
should satisfy itself, from the circumstances of the case and the nature of the evidence
which the witness is called to give, that there is a reasonable ground to apprehend real
and appreciable danger to the witness with reference to the ordinary operation of the
law in the ordinary course of things, and not a danger of an imaginary or insubstantial
character. The duty imposed by the court is non-delegable. It cannot simply adopt the
conclusion of the solicitor advising the witness whose conclusion may or may not be
correct . . . 3

1 Civil Procedure Rules, glossary. See generally R Pattenden, The Law of Professional-Client

Confidentiality:  Regulating the Disclosure of Confidential Personal Information (2003) 16.05–16.64; B

Thanki (ed), The Law of Privilege (2nd ed 2011).
2  [1942] 2 KB 253, 257.
3  R (CPS) v Bolton Magistrates’ Court [2003] EWHC 2697 (Admin), [2004] 1 Cr App R 33 at [25].
222
Legal Professional Privilege

Put another way,
the privilege is designed to provide protection in relation to questions which might
incriminate. If the danger of incrimination has already arisen and is independ-
ent of any questions which a person is required to answer, it is not possible to see
why that person should be entitled to any protection at all. If his position is made
no worse by answering a question, then there can be no basis for him to invoke the
privilege.4
The role of the privilege in pre-trial criminal procedure, so far as the questioning
of suspects at the pre-trial stage is concerned, has been discussed in some detail in
Chapter 5. With respect to the questioning of a defendant in a criminal trial, the privi-
lege has been affected by numerous statutory provisions such as section 1(2) of the
Criminal Evidence Act 1898 and the provisions of the Criminal Justice Act 2003 on
evidence of the defendant’s bad character, discussed in Chapter 10. In civil trials, the
privilege has been encapsulated in section 14(1) of the Civil Evidence Act 1968, which
provides:
The right of a person in any legal proceedings other than criminal proceedings to refuse
to answer any question or produce any document or thing if to do so would tend to expose
that person to proceedings for an offence or for the recovery of a penalty—
(a) shall apply only as regards criminal offences under the law of any part of the United
Kingdom and penalties provided for by such law; and
(b) shall include a like right to refuse to answer any question or produce any docu-
ment or thing if to do so would tend to expose the spouse or civil partner of that
person to proceedings for any such criminal offence or for the recovery of any such
penalty.
The Court of Appeal has held that the right to refuse to produce any document or thing
does not extend to refusing to produce ‘material . . . which is itself “real” and “independent”
evidence and is not itself “compelled testimony”’.5 It is also to be noted that only poten-
tial incrimination in relation to the criminal law of some part of the United Kingdom6
is relevant, and that the privilege extends to the witness’s spouse or civil partner. The
privilege has, however, been subjected to criticism, with Lord Templeman stating in 1992
that ‘I regard the privilege against self-incrimination exercisable in civil proceedings as
an archaic and unjustifiable survival from the past’.7

4  R v Khan [2007] EWCA Crim 2331 at [31].

5  C plc v P [2007] EWCA Civ 493, [2008] Ch 1 at [38] (endorsing A-G’s Reference (No 7 of 2000) [2001]
EWCA Crim 888, [2001] 2 Cr App R 19, discussed in Chapter 5). See generally S Burns, ‘A Very Limited
Privilege’ (2007) 151 Solicitors’ Journal 1014; R Moules, ‘The Privilege against Self-Incrimination and Real
Evidence’ [2007] Cambridge Law Journal 528; F L H Ng, ‘Privilege against Self-Incrimination in Independent
Evidence: C plc v P (Attorney-General Intervening)’ (2008) 12 International Journal of Evidence and Proof
150; A Zuckerman, ‘The Privilege against Self-Incrimination May not Confer a Right to Refuse Disclosure
of Incriminating Documents that Came into Existence Independently of the Disclosure Order’ (2007) 26
Civil Justice Quarterly 395.
6  This has been held to include EC law: In re Westinghouse Uranium Contract [1978] AC 547. Note that

a court can in its discretion protect a person from self-incrimination in relation to foreign law:  A-G for
Gibraltar v May [1999] 1 WLR 998.
7  A T & T Istel Ltd v Tully [1993] AC 45, 53. See also Phillips v News Group Newspapers Ltd [2012] UKSC

28, [2013] 1 AC 1 at [11].

‘ Without Prejudice’ Negotiations 223

3  ‘Without Prejudice’ Negotiations

‘The normal rule’ with respect to ‘without prejudice’ negotiations8 ‘is . . . that statements
made in negotiations entered into between parties to litigation with a view to settling that
litigation are inadmissible and therefore cannot be given in evidence’.9 The application of
‘without prejudice’ privilege in a particular case may be justified on one of two bases. The
first is ‘the public policy of encouraging litigants to settle their differences rather than
litigate them to a finish’.10 Thus:
There is a public policy benefit in helping parties who are attempting to negotiate settle-
ments. It is always better if litigation can be avoided where there is some possibility of
negotiations resolving a dispute. The privilege attaching to without prejudice documents
is there to support that policy.11
The second basis, one ‘of limited application and of doubtful legal respectability’,12 is the
existence of an implied contract:
there are circumstances in which the rule operates to defeat, not to promote, the
underlying policy of encouraging parties to settle their disputes without resort to
litigation. In those circumstances the rule has to be justified, if at all, on the basis
of an agreement that negotiations will be conducted on terms that, if the negotia-
tions fail, they will not be relied upon in subsequent litigation. In those cases the
court does not have recourse to an implied contract as the mechanism by which effect
is given to an underlying public policy; it recognises that effect must be given to a
contract (which, if not expressed, may fall to be implied from the circumstances in
which negotiations took place) notwithstanding that, by giving effect to that contract,
the public interest in encouraging parties to accept realistic offers of settlement is
frustrated. . . . And there are cases where the rule can only be justified on the basis
of public policy; that is to say, where it cannot be justified on the basis of implied
contract because the person against whom it is invoked was not party or privy to the
negotiations . . .13
The test for determining whether the privilege applies is as follows:
The court has to determine whether or not a communication is bona fide intended
to be part of or to promote negotiations. To determine that, the court has to work
out what, on a reasonable basis, the intention of the author was and how it would be
understood by a reasonable recipient. If a document is marked ‘without prejudice’,

8  See generally K Awadalla, ‘The Privileged Few’ (2003) 147 Solicitors’ Journal 43; D McGrath, ‘Without

Prejudice Privilege’ (2001) 5 International Journal of Evidence and Proof 213; J Michaelson, ‘Should This Be
the End of “Without Prejudice”?’ (2000) 150 New Law Journal 1850; C Mulcahy, ‘Lifting the Veil on Without
Prejudice Negotiations’ (2000) 144 Solicitors’ Journal 444; J Ross, ‘The Without Prejudice Rule’ (2002) 152
New Law Journal 1488; C Passmore, Privilege (3rd ed 2013) Ch 10.
9  Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC 990 at [85] per Lord Neuberger of Abbotsbury. See gen-

erally M Ahmed, ‘Protecting the Without Prejudice Rule’ (2009) 28 Civil Justice Quarterly 467; D Burrows,
‘Without Prejudice Privilege:  Negotiation Privacy’ [2009] Family Law 975; P Crampin and S Williams,
‘Lessons in Without Prejudice’ (2009) 159 New Law Journal 709. See also Sable Offshore Energy Inc v
Ameron International Corp 2013 SCC 37, [2013] 2 SCR 623.
10  Rush & Tompkins v GLC [1989] AC 1280, 1299.
11  Schering Corp v Cipla Ltd [2004] EWHC 2587 (Ch), [2005] FSR 25 at [12].
12  Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, [2007] 1 WLR 2443 at [24]. See generally R

Craig, ‘“Speak Now or Forever Hold Your Peace”’ (2008) 172 Criminal Law and Justice Weekly 719.
13  Prudential Insurance Co of America v Prudential Assurance Co Ltd [2003] EWCA Civ 1154 at [21].
224
Legal Professional Privilege

that is some indication that the author intended the document so to be treated as
part of a negotiating process, and in many cases a recipient would receive it under-
standing that that marking indicated that that was the author’s intention.
. . . the heading ‘without prejudice’ is not conclusive, but it may be one of the factors
which indicates how one should assess the document itself.14
‘Confining the operation of the rule . . . to negotiations of a dispute in the course of,
or after threat of litigation on it, or by reference to some time limit set close before
litigation, does not . . . fully serve the public policy interest underlying it of discour-
aging recourse to litigation and encouraging genuine attempts to settle whenever
made.’15 Even ‘the opening shot in negotiations can, depending upon the circum-
stances, amount to bona fide without prejudice correspondence and be privileged
accordingly’.16
The privilege extends beyond the protection of actual admissions made in the course
of the negotiations:
the protection of admissions against interest is the most important practical effect
of the rule. But to dissect out identifiable admissions and withhold protection from
the rest of without prejudice communications (except for a special reason) would
not only create huge practical difficulties but would be contrary to the under­
lying objective of giving protection to the parties [to enable them to speak freely].
Parties cannot speak freely at a without prejudice meeting if they must constantly
monitor every sentence, with lawyers or patent agents sitting at their shoulders as
minders.17
By definition, ‘the without prejudice rule has no application to apparently open commu-
nications . . . designed only to discuss the repayment of an admitted liability rather than
to negotiate and compromise a disputed liability’.18 It is interesting to speculate whether
a consequence of this is that, in an attempt to secure the privilege, ‘prudent legal advis-
ers will raise . . . a dispute . . . even where it cannot realistically be argued’.19 Negotiations
on the issue of costs are disclosable and admissible in evidence if these negotiations have
been expressly excluded from the scope of the privilege:
Negotiations or offers which have taken place expressly on the ‘without prejudice save
as to costs’ basis are of course admissible on that question. So much was decided in
the family law context in Calderbank v Calderbank [1976] Fam 93 and in the general
civil litigation context by Cutts v Head [1984] Ch 290. Such offers go by the name
‘Calderbank offers’. 20

14  Schering Corp v Cipla Ltd [2004] EWHC 2587 (Ch), [2005] FSR 25 at [14]–[15]. See generally J Levy,

‘Misuse of the Magic Words’, The Times, 15 Feb 2005, Law, 8; S Partington, ‘Which Prejudice?’ (2005) 149
Solicitors’ Journal 255. See also Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, [2007] 1 WLR
2443 at [22]: ‘It is trite law that the use or non-use of the words “without prejudice” in such negotiations
may indicate whether the communication(s) in question may attract the privilege, but is not necessarily
determinative on the point’.
15  Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, [2007] 1 WLR 2443 at [34].
16  Schering Corp v Cipla Ltd [2004] EWHC 2587 (Ch), [2005] FSR 25 at [18].
17  Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, 2448–9.
18  Bradford & Bingley plc v Rashid [2006] UKHL 37, [2006] 1 WLR 2066 at [73]. See generally T Akkouh

and E Gillett, ‘No Prejudice’ (2006) 150 Solicitors’ Journal 1044; M Iller, ‘Litigation Tactics’ (2006) 150
Solicitors’ Journal 1075; E Sautter, ‘No Admission’ (2006) 156 New Law Journal 1342.
19  T Akkouh and E Gillett, ‘No Prejudice’ (2006) 150 Solicitors’ Journal 1044, 1045.
20  Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 887, [2004] 1 WLR 3026 at [20].
‘ Without Prejudice’ Negotiations 225

Furthermore, ‘the without prejudice rule does not prevent the admission into evidence
of what one or both of the parties to litigation said or wrote . . . when the issue is whether
without prejudice communications have resulted in a concluded settlement agreement.
This is for the understandable reason that without considering the communications
in question it would be impossible to decide whether there was a concluded settlement
agreement or not’.21
It is possible for the privilege to be waived. The Court of Appeal noted in Brunel
University v Vaseghi:
In most cases, where a grievance meeting takes place in the usual way, internally, there
will be no question of waiver if the parties mention matters covered by ‘without preju-
dice’ privilege. But in the particular and unusual circumstances of this case, where the
proceedings were in effect a trial of . . . victimisation issues by an independent panel and
where both parties gave or called evidence of the previous negotiations, [it was possible]
to conclude that privilege had been bilaterally waived.22
The Court of Appeal has noted that, ‘even in situations to which the without prejudice
rule undoubtedly applies, the veil imposed by public policy may have to be pulled
aside, even so as to disclose admissions, in cases where the protection afforded by the
rule has been unequivocally abused’. 23 However, ‘the expansion of exceptions should
not be encouraged when an important ingredient of Lord Woolf ’s reforms of civil
justice is to encourage those who are in dispute to engage in frank discussions before
they resort to litigation’.24 Thus ‘it would set an unfortunate precedent if [it were] held
that an admission of the claimants’ title in a without prejudice letter was sufficiently
remote from the issues in a possession action relating to the same land as to be out-
side the rule’. 25 Nonetheless, the Supreme Court has accepted that ‘facts which (a) are
communicated between the parties in the course of without prejudice negotiations
and (b) would, but for the without prejudice rule, be admissible as part of the factual
matrix or surrounding circumstances as an aid to construction of an agreement which
results from the negotiations, should be admissible by way of exception to the without
prejudice rule’. 26

21 Brown v Rice [2007] EWHC 625 (Ch), [2008] FSR 3 at [10].

22 [2007] EWCA Civ 482, [2007] IRLR 592 at [25].
23  Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, 2449. See generally C Passmore, ‘Privilege

Update’ (1999) 149 New Law Journal 1865. See also Savings & Investment Bank Ltd v Fincken [2003] EWCA
Civ 1630, [2004] 1 WLR 667 at [57]: ‘the mere inconsistency between an admission and a pleaded case or a
stated position, with the mere possibility that such a case or position, if persisted in, may lead to perjury’,
does not amount to unequivocal abuse.
24  Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, 2449–50. See also Berry Trade Ltd v

Moussavi [2003] EWCA Civ 715; I R Scott, ‘Exceptions to Without Prejudice Rule’ (2003) 22 Civil Justice
Quarterly 316.
25  Ofulue v Bossert [2009] UKHL 16, [2009] 1 AC 990 at [91] per Lord Neuberger of Abbotsbury, who left

‘open the question of whether, and if so to what extent, a statement made in without prejudice negotiations
would be admissible if it were “in no way connected” with the issues in the case the subject of the negotia-
tions’ (at [92]).
26  Oceanbulk Shipping SA v TMT Ltd [2010] UKSC 44, [2011] 1 AC 662 at [1]‌ . See generally P S
Davies, ‘Negotiating the Boundaries of Admissibility’ [2011] Cambridge Law Journal 24; J McMullen,
‘Drop in the Ocean’, Solicitors’ Journal, 22 Nov 2010 (online); D Watson, ‘An Exception to the Rule’
(2011) 161 New Law Journal 59; A Zuckerman, ‘Without Prejudice Interpretation—With Prejudice
Negotiations: Oceanbulk Shipping and Trading SA v TMT Asia Ltd’ (2011) 15 International Journal of
Evidence and Proof 232.
226
Legal Professional Privilege

4  Legal Professional Privilege

4.1  What Is Legal Professional Privilege?
When proceeding through this chapter, the following questions should be borne in mind.
What exactly are the extrinsic policy considerations underlying the doctrine of legal
professional privilege? Does the current state of the law reflect these considerations in a
coherent manner?27
Two types of communications may be subject to legal professional privilege:
1. Confidential28 communications between client and legal adviser for the purpose
of obtaining and giving legal advice may be subject to legal advice privilege. (Legal
advice privilege also extends to certain related documents, or certain related items,
that were created or brought into existence for the purpose of obtaining or giving legal
advice.) The rationale for legal advice privilege29 has been authoritatively explained in
the following terms:
It is obviously true that in very many cases clients would have no inhibitions in provid-
ing their lawyers with all the facts and information the lawyers might need whether or
not there were the absolute assurance of non-disclosure that the present law of privilege
provides. But . . . it is necessary in our society, a society in which the restraining and con-
trolling framework is built upon a belief in the rule of law, that communications between
clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal
skills in the management of their (the clients’) affairs, should be secure against the pos-
sibility of any scrutiny from others, whether the police, the executive, business competi-
tors, inquisitive busybodies or anyone else . . . this idea . . . justifies . . . the retention of legal
advice privilege in our law, notwithstanding that as a result cases may sometimes have to
be decided in ignorance of relevant probative material.30
2.  Confidential communications between client or legal adviser and third parties
which have preparation for litigation as their sole or dominant purpose may be subject
to litigation privilege. Thus,
communications between parties or their solicitors and third parties for the purpose of
obtaining information or advice in connection with existing or contemplated litigation
are privileged, but only when the following conditions are satisfied: (a) litigation must
be in progress or in contemplation; (b) the communications must have been made for

27 See generally C Passmore, ‘The Future of Legal Professional Privilege’ (1999) 3 International

Journal of Evidence and Proof 71; J Auburn, Legal Professional Privilege: Law and Theory (2000). For a
Canadian perspective see A M Dodek, ‘Reconceiving Solicitor–Client Privilege’ (2010) 35 Queen’s Law
Journal 493.
28  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at

[24] per Lord Scott of Foscote: ‘legal advice privilege arises out of a relationship of confidence between
lawyer and client. Unless the communication or document for which privilege is sought is a confidential
one, there can be no question of legal advice privilege arising. The confidential character of the com-
munication or document is not by itself enough to enable privilege to be claimed but is an essential
requirement.’
29 For a discussion of legal advice privilege, see G C Hazard Jr, ‘An Historical Perspective on the

Attorney-Client Privilege’ (1978) 66 California Law Review 1061.

30  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [34] per

Lord Scott of Foscote. See also R v Derby Magistrates’ Court, ex p B [1996] AC 487, 507, 508; B v Auckland
District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [37].
Legal Professional Privilege 227

the sole or dominant purpose of conducting that litigation; (c) the litigation must be
adversarial, not investigative or inquisitorial. 31
(Litigation privilege also extends to certain related documents, or certain related items,
that were created or brought into existence for the sole or dominant purpose of preparing
for litigation.)
These principles are also articulated in section 10 of the Police and Criminal Evidence
Act 1984, which has been held32 to encapsulate the common law:
(1) Subject to subsection (2) below, in this Act ‘items subject to legal privilege’ means—
(a) communications between a professional legal adviser and his client or any person
representing his client made in connection with the giving of legal advice to the
client;
(b) communications between a professional legal adviser and his client or any per-
son representing his client or between such an adviser or his client or any such
representative and any other person made in connection with or in contempla-
tion of legal proceedings and for the purposes of such proceedings; and
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal proceedings and for the pur-
poses of such proceedings,
when they are in the possession of a person who is entitled to possession of them.
(2) Items held with the intention of furthering a criminal purpose are not items subject
to legal privilege.
The privilege is that of the client, and of the client’s successors in title. In relation to
legal advice privilege, there is a principle that ‘once privileged, always privileged’. 33
Thus it has been acknowledged that the privilege ‘survives the death of a lawyer’s client
and vests in his or her personal representatives or, once administration is complete, in
the person entitled to the deceased’s estate’. 34 A similar approach is taken by the US
Supreme Court, which has commented: ‘Knowing that communications will remain
confidential even after death encourages the client to communicate fully and frankly
with counsel.’35 Litigation privilege, however, is considered to come to an end with
the relevant litigation, 36 although it may be possible for the privilege to be claimed

31  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [102] per

Lord Carswell. See generally C Prest, ‘Legal Professional Privilege and Three Rivers (No 6): Part 2—Litigation
Privilege’ [2006] Family Law 864.
32  R v CCC, ex p Francis & Francis [1989] AC 346, 382, 384–5 per Lord Griffiths; 395 per Lord Goff of

Chieveley.
33  R v Derby Magistrates’ Court, ex p B [1996] AC 487, 503; B v Auckland District Law Society [2003]

UKPC 38, [2003] 3 WLR 859 at [44].

34  R v Molloy (Deceased) [1997] 2 Cr App R 283, 284.
35  Swidler & Berlin v US 524 US 399 (1998). See generally H L Ho, ‘Legal Professional Privilege After

Death of Client’ (1999) 115 Law Quarterly Review 27; R C Wydick, ‘The Attorney-Client Privilege: Does it
really Have Life Everlasting?’ (1999) 87 Kentucky Law Journal 1165.
36  ‘. . . the principle “once privileged, always privileged”, so vital to . . . solicitor–client privilege, is for-

eign to . . . litigation privilege’: Blank v Canada (Minister of Justice) [2006] 2 SCR 319 at [37]. See generally
J Goudkamp, ‘Litigation Privilege: Transient or Timeless? Blank v Canada (Minister of Justice)’ (2007) 11
International Journal of Evidence and Proof 322; D E Ives and S G A Pitel, ‘Filling in the Blanks for Litigation
Privilege: Blank v Canada (Minister of Justice)’ (2007) 11 International Journal of Evidence and Proof 49.
228
Legal Professional Privilege

in subsequent proceedings. Privilege may be invoked in subsequent litigation by the

client or his or her successor in title if the subject matter of the second action is suf-
ficiently connected with that of the first action for the document to be relevant in the
second action. 37
It is possible that, to be privileged, a document created for the purpose of obtaining
legal advice must have been created by the client him- or herself, so that a document cre-
ated by an employee of the client in order that the client may obtain legal advice is not
privileged.38 The House of Lords has declined to express a view on this.39

4.2  Collateral Facts and Pre-Existing Documents

Privilege does not extend to what may be termed ‘collateral facts’, and thus evidence of
such facts is admissible.40 A legal adviser is permitted, for example, to give evidence that
he or she had a meeting with the client;41 to give evidence about the physical or men-
tal state of the client;42 and to give evidence about the client’s handwriting.43 Equally,
it is clear that pre-existing documents—that is, documents not actually brought into
existence for the purpose either of obtaining/giving legal advice or of preparing for
litigation—are not privileged.44 Section 10(1)(c) of the Police and Criminal Evidence Act
1984, as seen in Section 4.1, extends privilege to certain items ‘made’ in connection with
the relevant purposes. The Court of Appeal held that the word ‘made’ is
certainly wide enough to include ‘brought into existence,’ and a sample of blood obtained
and held in a particular container does constitute an ‘item . . . made’ for the purposes of
legal proceedings etc. . . . (Documents are communications within section 10(1)(a) and
(b).) The significance of ‘made,’ meaning ‘brought into existence,’ in our judgment, is that
the privilege does not extend to objects which did not come into existence for the purpose
of obtaining legal advice, etc . . .45
A pre-existing document will, however, be privileged if to disclose it would have the effect
of revealing the nature of the legal advice given to the client.46

4.3  ‘Legal Adviser’

In R (Prudential plc) v Special Comr of Income Tax the Supreme Court declined to

37  The ‘Aegis Blaze’ [1986] 1 Lloyd’s Rep 203, 209–10. See also Blank v Canada (Minister of Justice) [2006]

2 SCR 319.
38  Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474, [2003] 3 WLR 667.
39  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [46]–[48]

per Lord Scott of Foscote; at [49] per Lord Rodger of Earlsferry; at [63] per Baroness Hale of Richmond;
and at [118] per Lord Carswell. See generally C Prest, ‘Legal Professional Privilege and Three Rivers (No 6):
Part 3—Conclusions’ [2006] Family Law 958.
40  See generally A Keane and P McKeown, The Modern Law of Evidence (10th ed 2014) 636, for a fuller

discussion.
41  R (Howe) v South Durham Magistrates’ Court [2004] EWHC 362 (Admin), (2004) 168 JP 424.
42  Jones v Godrich (1845) 5 Moo PC 16, 13 ER 394.
43  Dwyer v Collins (1852) 21 LJ Ex 225, 227.
44  Brown v Foster (1857) 1 H & N 736, 156 ER 1397; R v Peterborough Justice, ex p Hicks [1977] 1 WLR

1371; R v King [1983] 1 WLR 411; Ventouris v Mountain [1991] 1 WLR 607.

45  R v R [1994] 1 WLR 758, 763.
46  Dubai Bank Ltd v Galadari (No 7) [1992] 1 WLR 106, 110. See also Lyell v Kennedy (1884) 27

Ch D 1, 26.
Legal Professional Privilege 229

extend LAP [legal advice privilege] to communications in connection with advice given
by professional people other than lawyers, even where that advice is legal advice which
that professional person is qualified to give.
 . . . First, the consequences of [such an extension] are hard to assess and would be likely
to lead to what is currently a clear and well understood principle becoming an unclear
principle, involving uncertainty. Secondly, the question whether LAP should be extended
to cases where legal advice is given from professional people who are not qualified law-
yers raises questions of policy which should be left to Parliament. Thirdly, Parliament has
enacted legislation relating to LAP, which, at the very least, suggests that it would be inap-
propriate for the court to extend the law on LAP . . .47
As the quotation suggests, the general position is affected by a number of specific statu-
tory provisions. For example, the effect of section 33 of the Administration of Justice
Act 1985 is that licensed conveyancers are to be treated as solicitors for the purposes of
legal professional privilege. To be noted also is section 280 of the Copyright, Designs and
Patents Act 1988:
(1) This section applies to—
(a) communications as to any matter relating to the protection of any invention,
design, technical information, or trade mark, or as to any matter involving pass-
ing off, and
(b) documents, material or information relating to any matter mentioned in
paragraph (a).
(2) Where a patent attorney acts for a client in relation to a matter mentioned in
subsection (1), any communication, document, material or information to which
this section applies is privileged from disclosure in like manner as if the patent
attorney had at all material times been acting as the client’s solicitor.
Where the lawyer is an employee of the client the following considerations are relevant:
Lawyers do not cease to be regarded as professional legal advisers simply because they
are employed by their clients, for example in a company’s legal department, but in the
nature of things those who are employed in that capacity are more likely than inde-
pendent practitioners to become involved in aspects of the business that are essentially
managerial or administrative in nature. To that extent it is less easy to maintain that
all communications passing between them and the company’s management attract
privilege.48

47  [2013] UKSC 1, [2013] 2 AC 185 at [51]–[52]. See generally N Andrews, ‘Consultation with Non-Lawyers

Is Not Privileged at Common Law’ [2013] Cambridge Law Journal 284; J Copeman, ‘A Privileged Position?’
(2013) 163 New Law Journal 164; E Fennell, ‘Lawyers Still a Privileged Breed Apart’, The Times, 25 April
2013 (online); A Higgins and A Zuckerman, ‘Re Prudential plc [2013] UKSC 1: The Supreme Court Leaves
to Parliament the Issue of Privilege for Tax Advice by Accountants, What Parliament Should Do Is
Restrict Privilege for Tax Advice Given by Lawyers’ (2013) 32 Civil Justice Quarterly 313; J Loughrey, ‘An
Unsatisfactory Stalemate: R (On the Application of Prudential plc) v Special Commissioner of Income Tax’
(2014) 18 International Journal of Evidence and Proof 65; R Risby and M Healing, ‘Pushing the Limits of
Legal Advice Privilege’ (2013) 157(4) Solicitors’ Journal 11.
48  USA v Philip Morris Inc [2003] EWHC 3028 (Comm) at [64]. See also the decision of the Supreme

Court of Canada in Pritchard v Ontario (Human Rights Commission) [2004] 1 SCR 809 and, generally,
L Bastin, ‘Should “Independence” of In-House Counsel be a Condition Precedent to a Claim of Legal
Professional Privilege in respect of Communications between Them and Their Employer Clients?’ (2011) 30
Civil Justice Quarterly 33.
230
Legal Professional Privilege

Similar considerations apply where a legal adviser gives legal advice to a body of which he or
she happens to be a member, such as a board of trustees:
Trustees are entitled to consult a solicitor with reference to the affairs of the trust, and the
communications between them and their legal adviser are privileged if for the purpose
of obtaining legal advice. Why should such communications be less privileged because
the solicitor is himself one of the trustees? There is no valid distinction between such
communications with the solicitor who is himself a trustee, and such communications
with a solicitor who is outside the trust altogether. Of course the privilege is confined to
communications genuinely for the purpose of getting legal advice. It would not extend to
mere business communications with reference to the trust, not for the purpose of getting
legal advice.49

4.4  ‘Legal Advice’

Clearly, ‘legal advice is not confined to telling the client the law; it must include advice
as to what should prudently and sensibly be done in the relevant legal context’.50 After a
brief period of uncertainty, it is now clear that what constitutes ‘advice as to what should
prudently and sensibly be done in the relevant legal context’ is to be construed broadly:
The work of advising a client on the most suitable approach to adopt, assembling material
for presentation of his case and taking statements which set out the relevant material in an
orderly fashion and omit the irrelevant is to my mind the classic exercise of one of the law-
yer’s skills. [There is] no valid reason why that should cease to be so because the forum is
an inquiry or other tribunal which is not a court of law, provided that the advice is given in
a legal context . . . The skills of a lawyer in assembling the facts and handling the evidence
are of importance in that forum as well as a court of law. The availability of competent
legal advice will materially assist an inquiry by reducing irrelevance and encouraging the
making of proper admissions.51
By a similar token, ‘advice given by lawyers to objectors [at a planning inquiry] for the
purpose of enhancing the prospects of a successful outcome, from their point of view,
to the inquiry would be advice given in a relevant legal context and would qualify for
legal advice privilege’. ‘Every objector has the right under public law to present his case
to the inquiry.’52 Equally, ‘advice and assistance given by lawyers to promoters of pri-
vate Bills, although often, perhaps usually, presentational in character, would qualify for
legal advice privilege. The relevant legal context seems . . . clear. The same would apply
to advice by lawyers given to opponents of the proposed Bill.’53 Again, ‘advice given by

49  O’Rourke v Darbishire [1920] AC 581, 602. 50  Balabel v Air India [1988] Ch 317, 330.
51  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [114]
per Lord Carswell. See generally N Andrews, ‘Legal Advice Privilege’s Broad Protection—The House of
Lords in Three Rivers (No 6)’ (2005) 24 Civil Justice Quarterly 185; D Burrows, ‘Legal Advice:  Privilege
Revisited’ [2005] Family Law 491; J Fortnam and J Lobo, ‘Three Rivers: Comfort or Missed Opportunity?’
(2004) 154 New Law Journal 1750; N Jamieson and I Wilkinson, ‘Privileged Position’ (2004) 148 Solicitors’
Journal 1329; C Pearson, ‘Psst, Here’s a Bit of Legal Advice’, The Times, 16 Nov 2004, Law, 9; C Prest, ‘Legal
Professional Privilege and Three Rivers (No 6): Part 1—Legal Advice Privilege’ [2006] Family Law 764; R
Preston-Jones and J Paterson, ‘Three Rivers Run Deep?’ (2004) 154 New Law Journal 1709; J Seymour, ‘Legal
Advice Privilege and Presentational Advice’ [2005] Cambridge Law Journal 54; C F H Tapper, ‘Privilege,
Policy and Principle’ (2005) 121 Law Quarterly Review 181.
52  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [39] per

Lord Scott of Foscote.

53  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [40]

per Lord Scott of Foscote.

Legal Professional Privilege 231

parliamentary counsel to the Government in relation to the drafting and preparation of

public Bills . . . should qualify for legal advice privilege . . . here too, the relevant legal con-
text is unmistakable and . . . legal advice privilege should apply.’54 Whether ‘advice sought
from and given by a lawyer as to how to set about joining a private club’ would attract legal
advice privilege would depend on the existence of a relevant legal context:
Suppose the applicant for membership of the club had previously made an unsuccessful
application to join the club, believed that his rejection had been inconsistent with the
club’s admission rules and wanted to make a fresh application with a view to testing the
legality of his rejection if he were again to be blackballed. . . . in those circumstances the
communications between the lawyer and the applicant would be protected by legal advice
privilege. It would be protected because the communication would have a relevant legal
context. It would relate to the legal remedies that might be available if the applicant’s
application were again unsuccessful.55

4.5  Communications between Client and Legal Adviser

The extent to which communications between client and legal adviser must relate to the
giving or obtaining of legal advice in order to be covered by legal advice privilege was
explained by the House of Lords in Minter v Priest:
The relationship of solicitor and client being once established, it is not a necessary conclu-
sion that whatever conversation ensued was protected from disclosure. The conversation
to secure this privilege must be such as, within a very wide and generous ambit of inter-
pretation, must be fairly referable to the relationship, but outside that boundary the mere
fact that a person speaking is a solicitor, and the person to whom he speaks is his client
affords no protection.56 . . . 
. . . communications between solicitor and client which do not pass for the purpose of
giving or receiving professional advice are not protected. It follows that client and solici-
tor may meet for the purpose of legal advice and exchange protected communications,
and may yet in the course of the same interview make statements to each other not for the
purpose of giving or receiving professional advice but for some other purpose. Such state-
ments are not within the rule . . . 
. . . It is not necessary that the relations should have reached the definite status of solicitor
and client. The solicitor may not be willing to be employed as a solicitor by the person with
whom he may be communicating. If a person goes to a professional legal adviser for the
purpose of seeing whether the professional person will give him professional advice, com-
munications made for the purpose of indicating the advice required will be protected.57
Communications or documents passing between client and legal adviser may be privi-
leged even if they do not actually contain legal advice or a request for legal advice. A prag-
matic, purposive approach is to be taken to the issue:
the test is whether the communication or other document was made confidentially for the
purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously

54  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [41] per

Lord Scott of Foscote.

55  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [42] per

Lord Scott of Foscote. See also C Pearson, ‘Psst, Here’s a Bit of Legal Advice’, The Times, 16 Nov 2004, Law,
9: ‘If I ask my lawyer how to place a bet on a horse in the Grand National that advice will not be privileged
because the only consequences will be for my bank balance. If I ask for advice on how to set up a sweepstake
that advice will be privileged, since it will involve perhaps my own legal rights and certainly those of others.’
56  [1930] AC 558, 568 per Lord Buckmaster. 57  [1930] AC 558, 581, 584 per Lord Atkin.
232
Legal Professional Privilege

attaches to a document conveying legal advice from solicitor to client and to a specific request
from the client for such advice. But it does not follow that all other communications between
them lack privilege. In most solicitor and client relationships, especially where a transaction
involves protracted dealings, advice may be required or appropriate on matters great or small
at various stages. There will be a continuum of communication and meetings between the
solicitor and client. . . . Where information is passed by the solicitor or client to the other as
part of the continuum aimed at keeping both informed so that advice may be sought and
given as required, privilege will attach. A letter from the client containing information may
end with such words as ‘please advise me what I should do.’ But, even if it does not, there will
usually be implied in the relationship an overall expectation that the solicitor will at each
stage, whether asked specifically or not, tender appropriate advice.58
Privilege would still attach where a relevant communication was not in fact received; ‘if,
for example, the sender of the communication had died before the communication had
been sent to his legal adviser or the document concerned had been lost the privilege would
still exist’.59
It has been held that, ‘if legal advice obtained by one person is passed on to another
person for the sake of informing that other person in confidence of legal advice which that
person needs to know by reason of a sufficient common interest between them’, the legal
advice remains privileged.60

4.6  Communications with Third Parties

‘The purpose of . . . litigation privilege . . . is to create a “zone of privacy” in relation to pend-
ing or apprehended litigation.’61 Communications with third parties are subject to litiga-
tion privilege only if they have preparation for litigation involving the client62 as their sole
or dominant purpose. In Wheeler v Le Marchant,63 the question arose whether certain
reports made to the defendant’s solicitor by a surveyor were privileged. It was held that
they were not because, although the reports did relate to the subject matter of the litiga-
tion, they had been made at a time when no litigation was actually contemplated.64 For
privilege to attach it is necessary that litigation be reasonably in prospect:
It has been recognised on many occasions that there is a conflict between the need
to enable clients to communicate freely with their legal advisers in relation to litiga-
tion and the need to ensure that all relevant material is before the court . . . The point
at which litigation should be regarded as sufficiently likely for confidential commu-
nications between client and his lawyer to attract privilege on this ground therefore
involves striking an appropriate balance between these two factors. The requirement
that litigation be ‘reasonably in prospect’ is not . . . satisfied unless the party seeking to
claim privilege can show that he was aware of circumstances which rendered litigation
between himself and a particular person or class of persons a real likelihood rather than
a mere possibility.65

58  Balabel v Air India [1988] Ch 317, 330.

59  Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474, [2003] 3 WLR 667 at [21].
60  Svenska v Sun Alliance [1995] 2 Lloyd’s Rep 84, 88 (italics added). See generally N Jamieson and L

Chambers, ‘Great Interest’ (2006) 150 Solicitors’ Journal 156.

61  Blank v Canada (Minister of Justice) [2006] 2 SCR 319 at [34].
62  USA v Philip Morris Inc [2003] EWHC 3028 (Comm) at [48]. 63  (1881) 17 Ch D 675.
64  See also Gotha City v Sotheby’s [1998] 1 WLR 114.
65  USA v Philip Morris Inc [2003] EWHC 3028 (Comm) at [46], approved by the Court of Appeal in USA

v Philip Morris Inc [2004] EWCA Civ 330, [2004] 1 CLC 811 at [68].
Legal Professional Privilege 233

But, even if litigation were contemplated, preparation for the litigation must have been the
sole or at least the dominant purpose of the communications. In Woolley v North London
Railway Co66 it was held that, even though litigation was contemplated, certain reports to
the general manager of the railway company were not privileged, because they were made
simply for the purpose of conveying information. In some situations communications
may be made both for the purpose of preparation for contemplated litigation as well as for
a different purpose—for example, the improvement of the safety of a railway. Unless the
former purpose is at least the dominant purpose of the communications, privilege will
not apply.67 The ‘dominant purpose’ may be that of either the actual author of the docu-
ment or anyone under whose direction it was brought into existence.68
As an alternative to a ‘dominant purpose’ test it might be possible to apply a ‘sole pur-
pose’ test. In 1976 Australia adopted a ‘sole purpose’ test in preference to a ‘dominant
purpose’ one.69 The House of Lords in Waugh v British Railways Board was, however,
unpersuaded by this approach, Lord Wilberforce commenting that ‘to hold that the pur-
pose . . . must be the sole purpose would, apart from difficulties of proof, in my opinion,
be too strict a requirement, and would confine the privilege too narrowly’.70 It is notable
that the ‘sole purpose’ test has now been abandoned in favour of a ‘dominant purpose’
one in Australia.71
In R (Kelly) v Warley Magistrates’ Court the Administrative Court considered it ‘clear
that litigation privilege attaches to the identity and other details of witnesses intended to
be called in adversarial litigation, civil or criminal, whether or not their identity is the
fruit of legal advice’.72

4.7  Statutory Abrogation

Legal professional privilege may be abrogated by statute either expressly or by necessary
implication:
A necessary implication is not the same as a reasonable implication . . . A necessary implica-
tion is one which necessarily follows from the express provisions of the statute construed
in their context. It distinguishes between what it would have been sensible or reasonable
for Parliament to have included or what Parliament would, if it had thought about it, prob-
ably have included and what it is clear that the express language of the statute shows that
the statute must have included. A necessary implication is a matter of express language
and logic not interpretation.73
Thus in R (Morgan Grenfell Ltd) v Special Comr74 the House of Lords held that legal pro-
fessional privilege had not been abrogated by a statutory provision to the effect that ‘an
inspector may by notice in writing require a person (a) to deliver to him such documents

66  (1869) LR 4 CP 602.

67  Waugh v British Railways Board [1980] AC 521. See also Melik & Co v Norwich Union [1980] 1 Lloyd’s
Rep 523; Sec of State for Trade v Baker [1998] 2 WLR 667.
68  Guinness Peat Ltd v Fitzroy Robinson [1987] 1 WLR 1027.
69  Grant v Downs (1976) 135 CLR 674. 70  [1980] AC 521, 533.
71  S 119 of the Uniform Evidence Acts in Australia; Esso Australia Resources Ltd v Commissioner of

Taxation [1999] HCA 67.

72  [2007] EWHC 1836 (Admin), [2008] 1 WLR 2001 at [20]. See generally J Mackie, ‘Life in Crime’ (2007)

151 Solicitors’ Journal 1082.

73  R (Morgan Grenfell Ltd) v Special Comr [2002] UKHL 21, [2003] 1 AC 563 at [45] (italics in original),

approved in B v Auckland District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [58].
74  [2002] UKHL 21, [2003] 1 AC 563.
234
Legal Professional Privilege

as are in the person’s possession or power and as (in the inspector’s reasonable opinion)
contain, or may contain, information relevant to (i) any tax liability to which the person
is or may be subject, or (ii) the amount of any such liability’.75 The Law Lords rejected ‘the
argument that a general public interest in collecting revenue for the executive suffices (in
peace-time) implicitly to override the basic right and public interest represented by legal
professional privilege’.76

4.8  Waiver
As the privilege is that of the client, he or she may waive it, either expressly or impliedly.77
‘A client expressly waives his legal professional privilege when he elects to disclose com-
munications which the privilege would entitle him not to disclose.’78 In relation to docu-
ments, ‘the test is whether the contents of the document are being relied on, rather than
its effect’.79 A reference to the effect of a document does not constitute waiver, but deploy-
ment of the document (reliance on its contents) does. ‘It must be right that a bare reference
to a document in a pleading does not waive any privilege attaching to it . . . If, on the other
hand, a document is reproduced in full in the pleading, its confidentiality is gone and no
question of privilege could arise. Where the line is drawn between these two extremes
may be a matter of some nicety’.80
It is not permissible to ‘cherry-pick’ by waiving privilege in relation to part of a com-
munication or document but not in relation to other parts of the same communication
or document that relate to the same subject matter. It has been said that ‘waiver of part of
a document is bound to lead to grave difficulties for all parties and to many unjustified
suspicions’;81 ‘to allow an individual item to be plucked out of context would be to risk
injustice through its real weight or meaning being misunderstood’.82 Waiver in relation
to part of a document is possible, however, where the remainder of the document relates
to such a distinct subject matter that severance is possible:
The second question is whether, the whole of the memorandum being a privileged com-
munication between legal adviser and client, the plaintiffs may waive the privilege with
regard to the first two paragraphs of the memorandum but assert privilege over the

75
  Taxes Management Act 1970, s 20(1), now replaced by the Finance Act 2008, Sch 36, para 1.
76  [2002] UKHL 21, [2003] 1 AC 563 at [46] per Lord Hobhouse of Woodborough. See generally E
Brown, ‘Legal Professional Privilege and the Inland Revenue’ (2002) 152 New Law Journal 1020; S McNicol,
‘Implications of the Human Right Rationale for Legal Professional Privilege—The Demise of Implied
Statutory Abrogation?’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (2003); J Tiley, ‘Professional
Privilege and the Tax Man’ [2002] Cambridge Law Journal 540.
77 See generally British American Tobacco (Investments) Ltd v USA [2004] EWCA Civ 1064. For

Australian discussion see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management
and Marketing Pty Ltd [2013] HCA 46; M Legg, ‘High Court of Australia Employs Case Management and
“Overriding Purpose” to Resolve Dispute over Mistaken Provision of Privileged Documents in Discovery’
(2014) 33 Civil Justice Quarterly 115.
78  Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188.
79  P Matthews and H M Malek, Disclosure (2nd ed 2001) 10.17 (italics in original), quoted in Dunlop

Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 at [11]; Lucas v Barking, Havering
and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All ER 720 at [19].
80  Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223, 252, revd in [1982] AC 888 on different grounds.
81  Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529, 537 per Templeman LJ.
82  Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation [1981] Com LR

138, 139, quoted in P Matthews and H M Malek, Disclosure (2nd ed 2001) 10.17 and in Dunlop Slazenger
International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 at [11]; Lucas v Barking, Havering and
Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All ER 720 at [19].
Legal Professional Privilege 235

additional matter. . . . severance would be possible if the memorandum dealt with entirely

different subject matters or different incidents and could in effect be divided into two
separate memoranda each dealing with a separate subject matter.83
Waiver of privilege in relation to a communication or document does not automatically
constitute waiver of privilege in relation to other communications or documents dealing
with the same subject matter.84 Whether it does constitute waiver would appear to be
dependent on the circumstances: ‘While there is no rule that a party who waives privilege
in relation to one communication is taken to waive privilege in relation to all, a party may
not waive privilege in such a partial and selective manner that unfairness or misunder-
standing may result.’85
A client may impliedly waive privilege by bringing an action against his or her solicitor.
The rationale for this has been explained as follows:
When a client sues a solicitor who has formerly acted for him, complaining that the solici­
tor has acted negligently, he invites the court to adjudicate on questions directly arising
from the confidential relationship which formerly subsisted between them. Since court
proceedings are public, the client brings that formerly confidential relationship into the
public domain. He thereby waives any right to claim the protection of legal professional
privilege in relation to any communication between them so far as necessary for the
just determination of his claim; or, putting the same proposition in different terms, he
releases the solicitor to that extent from the obligation of confidence by which he was
formerly bound. This is an implication of law, the rationale of which is plain. A party
cannot deliberately subject a relationship to public scrutiny and at the same time seek to
preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the
relationship as strengthen his claim for damages and concealing from forensic scrutiny
such incidents as weaken it. He cannot attack his former solicitor and deny the solici-
tor the use of materials relevant to his defence. But, since the implied waiver applies to
communications between client and solicitor, it will cover no communication to which
the solicitor was not privy and so will disclose to the solicitor nothing of which he is not
already aware.86
In Lillicrap v Nalder & Son,87 the plaintiffs were property developers who engaged the
defendants, a firm of solicitors, to act for them in a series of transactions. The plaintiffs
brought an action against the defendants in respect of one of those transactions, alleging
negligence on the part of the defendants in failing to provide proper advice. The Court
of Appeal held that the institution by a client of civil proceedings against his or her
solicitor constitutes an implied waiver of legal professional privilege to the extent nec-
essary to enable the court to adjudicate the dispute fully and fairly. Such waiver would
extend only to documents relevant to an issue in the action. The waiver must extend
sufficiently far, however, not only to enable the plaintiff to establish his or her cause of
action, but also to enable the defendant to establish a defence to the cause of action if one
exists. Here, the issue between the parties concerned causation of loss; the defendants

83  Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529, 536.

84  General Accident Corpn v Tanter [1984] 1 WLR 100, 114–15. See also Balkanbank v Taher, The Times,
19 Feb 1994.
85  Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188.
86  Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188. See generally J Auburn, ‘Generalised Rules of

Fairness in Evidence Law’ (2000) 63 Modern Law Review 104. A petition for leave to appeal to the House of
Lords was dismissed: [1999] 1 WLR 1463. See also Nederlandse Reassurantie Groep Holding NV v Bacon &
Woodrow [1995] 1 All ER 976, 986.
87  [1993] 1 WLR 94.
236
Legal Professional Privilege

admitted negligence but denied that this had caused the loss, and thus the plaintiffs
had to establish such causation before they could be awarded substantial damages. It
would be a defence for the defendants to establish, with reference to earlier transac-
tions, that the plaintiffs would have proceeded with the transaction in question whatever
advice they received. The documents in the other transactions were therefore relevant.
Accordingly, the plaintiffs’ implied waiver of privilege extended to the documents in the
other transactions.
Privilege would appear not to be waived where one defendant discloses legal advice to
another in circumstances where confidentiality is assumed.88
It has been held that, if X makes a privileged document available to the police for the
limited purpose of assisting in the conduct of criminal proceedings against Y, this can-
not properly be construed as waiver of privilege for the purposes of X’s subsequent civil
action against Y. ‘Indeed, it would . . . be contrary to public policy if the plaintiff’s action in
making the documents available in the criminal proceedings had the effect of automati-
cally removing the cloak of privilege which would otherwise be available to it in the civil
litigation for which the cloak was designed.’89
Specific provisions relating to instructions on which experts’ reports are based are con-
tained in the Civil Procedure Rules.90 Rule 35.10(3) provides: ‘The expert’s report must
state the substance of all material instructions, whether written or oral, on the basis of
which the report was written.’ Rule 35.10(4) provides:
The instructions referred to in paragraph (3) shall not be privileged against disclosure but
the court will not, in relation to those instructions—
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the statement of instruc-
tions given under paragraph (3) to be inaccurate or incomplete.
According to the Court of Appeal, ‘CPR 35.10(4) is designed primarily to give protection
to a party who would otherwise have waived privilege by being compelled to set out mat-
ters in an expert’s report’.91 It is
a premise of the arrangements constituted by 35.10(3) and (4) that in the ordinary way
the expert is to be trusted to comply with 35.10(3): the effect of the 35.10(4) restrictions
is that the party on the other side may not as a matter of course call for disclosure of
documents constituting the expert’s instructions as a check to see that 35.10(3) has been
fulfilled. There must be some concrete fact giving rise to ‘reasonable grounds’ within the
closing words of 35.10(4). It is unsurprising that the expert is thus to be trusted; it is of a
piece with his overriding duty to help the court (CPR 35.3). Overall, 35.10(4) . . . strikes an
important balance between on the one hand the protection of the party whose privilege
is lost, and on the other the vindication of 35.10(3) where there is a real question-mark as
to its fulfilment.92

88  Gotha City v Sotheby’s [1998] 1 WLR 114.

89  British Coal Corpn v Dennis Rye Ltd [1988] 1 WLR 1113, 1122.
90  See generally A Edis, ‘Privilege and Immunity: Problems of Expert Evidence’ (2007) 26 Civil Justice

Quarterly 40; P England, ‘Expert Privilege’ in Civil Evidence (2011).

91  Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All

ER 720 at [31]. See D Hall, ‘The Pitfall of Unintended Loss of Privilege’ (2004) 154 New Law Journal 290; C
Thomas, ‘Disclosure of Privileged Documentation’ (2003) 153 New Law Journal 1735.
92  Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All

ER 720 at [43].
Legal Professional Privilege 237

As one commentator has written:

This is a pragmatic approach, avoiding satellite litigation and tactical warfare, but pro-
viding a remedy where there is obvious sharp or dishonest practice. Solicitors should
though be aware that whenever they supply documentation to an expert, there is a risk
that the court may at some stage in the future order disclosure of any document sent to
the expert.93
‘A wide reading of the term “instructions”’94 is to be taken:  ‘Material supplied by the
instructing party to the expert as the basis on which the expert is being asked to advise
should . . . be considered as part of the instructions and thus subject to CPR 35.10(4).’95
The issue of waiver of legal professional privilege in the context of section 34 of the
Criminal Justice and Public Order Act 1994 is discussed in detail in Chapter 5.

4.9  Facilitation of Crime or Fraud

‘A well recognised exception to the right to assert legal professional privilege is where the
document or documents in question came into existence in furtherance of some criminal
or fraudulent purpose’,96 or ‘where the privileged communication is itself the means of
carrying out a fraud’97 or crime. It has been held that ‘what has to be shown prima facie
is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but
a prima facie case that the communications in question were made in preparation for or
in furtherance or as part of it’.98 The law takes the view that, while there is a strong public
interest in legal professional privilege, there is an equally strong public interest in com-
bating crime or fraud and in protecting the victims or potential victims of it.99 It has been
emphasized that it is inappropriate to attempt an all-embracing definition of the neces-
sary ‘criminal or fraudulent’ purpose. However, it would seem that
a deliberate misrepresentation made by a borrower to a building society for the purpose
of procuring an advance is within the scope of the exception. . . . Deceiving a person into
lending money in circumstances where, if no deception had been practised, no loan might
well have been forthcoming is . . . at least as iniquitous as entering into a transaction for the
purpose of putting one’s assets beyond the reach of one’s creditors or otherwise prejudic-
ing the interests of those creditors. The fact that the motive was to relieve financial pres-
sure does not seem . . . to matter.100
It is inappropriate, in an attempt to invoke the ‘facilitation of crime or fraud’ exception,
to seek to analyse issues likely to arise in the trial in question:
In order to defeat a claim to legal professional privilege, it will not be appropriate . . . to
seek to analyse the issues which are likely to arise in the . . . trial which gives rise to the
initial privilege. To do so . . . would be to put the cart, in the form of analysis of the issues,
before the horse, that is the trial. Where, however, there is evidence of specific agreement

93  N Madge, ‘Expert Privilege’ (2003) 147 Solicitors’ Journal 1226, 1227.

94  Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All
ER 720 at [42].
95  Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] 4 All

ER 720 at [34].
96  Nationwide Building Society v Various Solicitors [1999] PNLR 52, 72.
97  B v Auckland District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [44].
98  Butler v Board of Trade [1971] Ch 680, 689.
99  Dubai Aluminium Co Ltd v Al Alawi [1999] 1 WLR 1964, 1969.
100  Nationwide Building Society v Various Solicitors [1999] PNLR 52, 73.
238
Legal Professional Privilege

to pervert the course of justice, which is freestanding and independent, in the sense that it
does not require any judgment to be reached in relation to the issues to be tried, the court
may well be in a position to evaluate whether what has occurred falls within or outwith
the protection of legal professional privilege . . .101
On the relevance of the solicitor’s role in the context of a consideration of whether legal
advice privilege has been defeated by the exception, it would appear that,
provided the solicitor’s advice and assistance is employed in furtherance of ‘the iniq-
uity’[,]‌the exception comes into play in relation to confidential communications
between the solicitor and client which would otherwise be protected by the client’s
privilege. It matters not whether the solicitor was engaged to advise in relation to the
misrepresentation or whether he was aware that his involvement was in furthering the
iniquity.102
The exception is clearly applicable to either type of legal professional privilege: ‘(1) the
fraud exception can apply where there is a claim to litigation privilege as much as where
there is a claim to legal advice privilege; (2) nevertheless it can only be used in cases in
which the issue of fraud is one of the issues in the action where there is a strong . . . prima
facie case of fraud . . .; (3) where the issue of fraud is not one of the issues in the action, a
prima facie case of fraud may be enough’.103
In Dubai Aluminium Co Ltd v Al Alawi it was held that, where investigative agents
employed by solicitors have engaged in criminal or fraudulent conduct for the purposes of
acquiring evidence for litigation, ‘any documents generated by or reporting on such con-
duct and which are relevant to the issues in the case . . . fall outside the legitimate area of
legal professional privilege’.104 It was said that, ultimately, ‘criminal or fraudulent conduct
undertaken for the purposes of litigation falls on the same side of the line as advising on
or setting up criminal or fraudulent transactions yet to be undertaken, as distinct from
the entirely legitimate professional business of advising and assisting clients on their past
conduct, however iniquitous’.105
Section 10(2) of the Police and Criminal Evidence Act 1984, which, as seen in Section
4.1, provides that ‘items held with the intention of furthering a criminal purpose’ are
not subject to legal professional privilege, was considered in R v CCC, ex p Francis &
Francis.106 The majority of the House of Lords107 held that, as the holder of any items
would normally be a solicitor,108 and ‘because cases of solicitors having the intention of
furthering a criminal purpose are happily rare’, ‘intention’ in section 10(2) must mean

101  R (Hallinan Blackburn Gittings & Nott) v Crown Court at Middlesex Guildhall [2004] EWHC 2726

(Admin), [2005] 1 WLR 766 at [25].

102  Nationwide Building Society v Various Solicitors [1999] PNLR 52, 74 (italics added). See also R v

Cox (1884) 14 QBD 153, 165–6: ‘The question . . . is, whether, if a client applies to a legal adviser for advice
intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being
ignorant of the purpose for which his advice is wanted, the communication between the two is privi-
leged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the
result would be that a man intending to commit treason or murder might safely take legal advice for the
purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was
made would not be at liberty to give information against his client for the purpose of frustrating his
criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which
they are involved.’
103  Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] EWCA Civ 286, [2005] 1 WLR 2734 at [42].
104  [1999] 1 WLR 1964, 1969. 105  [1999] 1 WLR 1964, 1970. 106  [1989] AC 346.
107  Lord Brandon of Oakbrook, Lord Griffiths, and Lord Goff of Chieveley. Lord Bridge of Harwich and

Lord Oliver of Aylmerton dissented.

108  [1989] AC 346, 380.
Legal Professional Privilege 239

the intention of the holder or any other person. This interpretation, it was thought, ‘would
materially assist in achieving the purpose of [the legislation], and would prevent the prin-
ciple of legal privilege being used to protect the perpetrators of serious crimes’.109 It has
the potential, however, of eroding the protection afforded by legal professional privilege
to a very significant degree.110 As has been pointed out: ‘A lawyer must now say to a client
that nothing the client says will be protected from disclosure if anyone else in the world
has a dishonest intention in relation to the subject matter and is using the client as an
innocent tool.’111

4.10  An ‘Absolute’ Doctrine?

The question whether legal professional privilege constitutes an ‘absolute’ doctrine, or
whether, instead, it is subject to a ‘balancing’ exercise, was considered by the House of
Lords in two cases. The first of these, R v Derby Magistrates’ Court, ex p B,112 concerned
legal advice privilege. A person was accused of a murder which his stepson B had earlier
confessed to and been charged with. B was later acquitted when he retracted his confes-
sion and blamed his stepfather. The stepfather sought production of the instructions that
B had initially given to his solicitors when admitting to the murder. The House of Lords
held that it was inappropriate to balance the public interest underlying legal advice privi-
lege against the public interest in ensuring that all relevant evidence was made available
to the defence.113 To acknowledge that such a balancing exercise may be performed would
mean that
the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his cli-
ent that anything which the client might say would never in any circumstances be revealed
without his consent, would have to qualify his assurance. He would have to tell the client
that his confidence might be broken if in some future case the court were to hold that he
no longer had ‘any recognisable interest’ in asserting his privilege. One can see at once that
the purpose of the privilege would thereby be undermined.114
Moreover, the House of Lords did not consider that the doctrine of public interest immu-
nity, requiring as it does a balancing exercise, provided an appropriate analogy:
As for the analogy with public interest immunity, . . . it by no means follows that because a
balancing exercise is called for in one class of case, it may also be allowed in another. Legal
professional privilege and public interest immunity are as different in their origin as they
are in their scope. Putting it another way, if a balancing exercise was ever required in the
case of legal professional privilege, it was performed once and for all in the 16th century,
and since then has applied across the board in every case, irrespective of the client’s indi-
vidual merits.115

109  [1989] AC 346, 381 per Lord Brandon of Oakbrook.

110  The interpretation might ‘open the door to a spate of applications to obtain access to privileged material
on the ground that the privilege is vitiated by a criminal intention on the part of some third party’: R v CCC,
ex p Francis & Francis [1989] AC 346, 379 per Lord Bridge of Harwich.
111  A L E Newbold, ‘The Crime/Fraud Exception to Legal Professional Privilege’ (1990) 53 Modern Law

Review 472, 483. Cf C Passmore, Privilege (3rd ed 2013) [8-010].

112  [1996] AC 487. See generally M Bowes, ‘The Supremacy of Legal Professional Privilege: The Derby

Magistrates Case’ [1996] 4 Archbold News 5; C Tapper, ‘Prosecution and Privilege’ (1996) 1 International
Journal of Evidence and Proof 5; A A S Zuckerman, ‘Legal Professional Privilege—The Cost of Absolutism’
(1996) 112 Law Quarterly Review 535.
113  R v Barton [1973] 1 WLR 115 and R v Ataou [1988] QB 798 were overruled.
114  R v Derby Magistrates’ Court, ex p B [1996] AC 487, 508. 115  [1996] AC 487, 508.
240
Legal Professional Privilege

This decision is open to criticism on the ground that it overlooks the importance of the
need to protect the innocent from wrongful conviction. Indeed, as the Privy Council
has subsequently observed, ‘the public interest in overriding the privilege could
scarcely have been higher than it was in . . . Ex p B’.116 To distinguish legal professional
privilege from public interest immunity is not convincing, since in both cases the issue
is whether the need to ensure that a defendant is able to establish his or her innocence
may be overridden by extrinsic policy considerations. The fact that in the sixteenth
century the balance may have come down in favour of upholding the privilege whatever
the circumstances does not dictate that this should still be the case in the twenty-first
century. Lord Taylor’s fear that ‘once any exception to the general rule is allowed, the
client’s confidence is necessarily lost’, and that clients ‘might . . . be deterred from tell-
ing the whole truth to their solicitors’, is based merely on an assumption which lacks
empirical support.
A different approach is taken in Canada, where ‘disclosure . . . of records sub-
ject to a claim of solicitor–client privilege may . . . be ordered where absolutely nec-
essary’.117 ‘Absolute necessity is as restrictive a test as may be formulated short of
an absolute prohibition in every case.’118 In criminal cases, the right of an accused
under section 7 of the Canadian Charter of Rights and Freedoms to make full
answer and defence has proved instrumental. Given ‘Canadians’ abhorrence at the
possibility of a faulty conviction’,119 ‘solicitor–client privilege is not absolute and
may, in rare circumstances, be required to yield in order to permit an accused to
make full answer and defence to a criminal charge’.120 The approach to be taken is
as follows:
The . . . test comprises a threshold question and a two-stage innocence at stake test, which
proceed as follows:
• To satisfy the threshold test, the accused must establish that:
• the information he seeks from the solicitor–client communication is not available
from any other source; and
• he is otherwise unable to raise a reasonable doubt.
• If the threshold has been satisfied, the judge should proceed to the innocence at stake
test, which has two stages.
• Stage #1: The accused seeking production of the solicitor–client communication has
to demonstrate an evidentiary basis to conclude that a communication exists that
could raise a reasonable doubt as to his guilt.
• Stage #2: If such an evidentiary basis exists, the trial judge should examine the com-
munication to determine whether, in fact, it is likely to raise a reasonable doubt as to
the guilt of the accused.
• It is important to distinguish that the burden in the second stage of the innocence
at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage
(could raise a reasonable doubt).

116  B v Auckland District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [48]. See generally

M D J Conaglen, ‘Disciplinary Investigations and Legal Professional Privilege’ [2003] Cambridge Law
Journal 580.
117  Goodis v Ontario (Ministry of Correctional Services) [2006] 2 SCR 32 at [4]‌(italics added).
118  Goodis v Ontario (Ministry of Correctional Services) [2006] 2 SCR 32 at [20].
119  R v Brown [2002] 2 SCR 185 at [2]‌. 120  R v Brown [2002] 2 SCR 185 at [1]‌.
Legal Professional Privilege 241

• If the innocence at stake test is satisfied, the judge should order disclosure of the com-
munications that are likely to raise a reasonable doubt . . .121
Interestingly, the Privy Council, while confirming that Ex p B correctly represented
English law,122 did ‘not overlook the fact that a different approach has been adopted in
Canada, where the courts do conduct a balancing exercise by reference to the facts of the
particular case. The common law is no longer monolithic’.123 As Pattenden has noted,
however, consideration of the adoption in criminal cases in England and Wales of an
approach akin to the Canadian one would raise a number of questions:
• Should it apply to all criminal offences, or only serious crimes?
• Is the right confined to the defence? . . . 
• What happens if the protected material to which the accused seeks access is simultane-
ously subject to the privilege against self-incrimination?
• To what extent, if at all, should the exception to LPP apply in circumstances where two
persons are jointly standing trial and a communication by one co-defendant to his
lawyer would materially assist the other?
• If, in the interests of avoiding a miscarriage of justice, a privileged communication has
to be disclosed, what practical steps should the court take to protect the confidentiality
of the disclosed material?124
The second relevant decision of the House of Lords concerns litigation privilege. At issue
in In re L (A Minor)125 was the extent to which litigation privilege was applicable in care
proceedings under Part IV of the Children Act 1989. Ex p B was distinguished on the basis
that what was decided in that case about the absolute nature of legal professional privilege
was confined to legal advice privilege. Litigation privilege, the House of Lords reasoned,
is an essential component of adversarial procedure. . . . This raises the question of whether
proceedings under Part IV of the Act are essentially adversarial in their nature. If they

121
  R v Brown [2002] 2 SCR 185 at [4]‌. See generally D Layton, ‘R v Brown: Protecting Legal-Professional
Privilege’ (2002) 50 Criminal Reports (5th) 37. See also Smith v Jones [1999] 1 SCR 455 (see generally R
I  Barrett, ‘Legal Professional Privilege:  A  “Public Safety” Exception?’ (1999) 73 Australian Law Journal
629; D Layton, ‘The Public Safety Exception:  Confusing Confidentiality, Privilege and Ethics’ (2001)
6 Canadian Criminal Law Review 217; W N Renke, ‘Secrets and Lives—The Public Safety Exception to
Solicitor–Client Privilege: Smith v Jones’ (1999) 37 Alberta Law Review 1045; B M Sheldrick, ‘Administering
Public Safety: Solicitor–Client Privilege, Medical Experts and the Adversarial Process: Smith v Jones’ (2000)
4 International Journal of Evidence and Proof 119); R v McClure [2001] 1 SCR 445 (see generally D Layton,
‘R v McClure: The Privilege on the Pea’ (2001) 40 Criminal Reports (5th) 19; G Murphy, ‘The Innocence at
Stake Test and Legal Professional Privilege: A Logical Progression for the Law . . . but not in England’ [2001]
Criminal Law Review 728).
122  B v Auckland District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [54]: ‘Their Lordships con-

sider that the rationale of the doctrine compels this conclusion. If the lawyer is to be able to give his client
an absolute and unqualified assurance that what he tells him will not be disclosed without his consent in
any circumstances, the assurance must follow and not precede the undertaking of any balancing exercise.’
123  B v Auckland District Law Society [2003] UKPC 38, [2003] 3 WLR 859 at [55]. See also Three Rivers

District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [25] per Lord Scott of
Foscote.
124  R Pattenden, The Law of Professional-Client Confidentiality: Regulating the Disclosure of Confidential

Personal Information (2003) 552–3.

125  [1996] 2 WLR 395. See generally D Burrows, ‘Privilege and Disclosure after Re L’ (1996) 140 Solicitors’

Journal 560; J McEwan, ‘The Uncertain Status of Privilege in Children Act Cases: Re L’ (1996) 1 International
Journal of Evidence and Proof 80; R Mahoney, ‘Reforming Litigation Privilege’ (2001) 30 Common Law
World Review 66; C Passmore, ‘Privilege in the Lords’ (1996) 146 New Law Journal 921.
242
Legal Professional Privilege

are, litigation privilege must continue to play its normal part. If they are not, different
considerations may apply.126
The House of Lords considered that care proceedings under Part IV of the 1989 Act were
‘essentially non-adversarial in their nature’.127 Support for this view was gained from
section 1(1) of the Act, which provides in part: ‘When a court determines any question
with respect to . . . the upbringing of a child . . . the child’s welfare shall be the court’s para-
mount consideration.’ Thus, in view of the fact that litigation privilege arose essentially in
an adversarial context and the fact that care proceedings were essentially non-adversarial,
litigation privilege did not automatically apply in care proceedings and the House of
Lords was at liberty to determine whether it should apply. The House considered ‘that
care proceedings under Part IV of the Act are so far removed from normal actions’ that
litigation privilege should have no application in such proceedings.128
This decision, then, makes much of the supposed distinction between legal advice
privilege and litigation privilege. Whether this distinction is convincing, or whether
legal advice privilege and litigation privilege are in reality, as Lord Nicholls of Birkenhead
thought in his dissenting speech,129 ‘integral parts of a single privilege’, is debatable. It is
at least arguable that the House of Lords in In re L (A Minor) should have taken the bold
step of declaring Ex p B to have been wrongly decided, and not simply have confined the
decision to cases of legal advice privilege. After all, ‘if the House of Lords places child
welfare above the litigant’s interest why should the removal of legal professional privilege
be confined to its litigation limb? In other words, should not communications between
client and lawyer also be disclosable for the sake of protecting children from harm?’130

4.11  Non-Availability of Privilege in Another Jurisdiction

The fact that the privilege cannot, for whatever reason, be invoked in another jurisdiction
is irrelevant to its availability in this one: ‘privilege is not lost under English law because it
cannot be claimed in another country’.131 ‘To suggest otherwise would mean that a court,
when deciding whether to uphold a claim for privilege, would need to be informed as to
whether privilege could be claimed in all the countries of the world. . . . The fact that under
foreign law the document is not privileged or that the privilege that existed is deemed to
have been waived is irrelevant.’132

4.12  Secondary Evidence

The general principle, affirmed in Calcraft v Guest,133 is that, where privileged informa-
tion has become known to a person not entitled to it (that is, a person other than the cli-
ent, the legal adviser, any relevant third parties, or any agents for communication such
as clerks and secretaries), the information may be used by that person in evidence. It is
irrelevant how that person came by the information. If the information became known

126  In re L (A Minor) [1996] 2 WLR 395, 400–1. 127  [1996] 2 WLR 395, 401.

128  [1996] 2 WLR 395, 402. See also Three Rivers District Council v Bank of England (No 5) [2003] EWCA
Civ 474, [2003] 3 WLR 667 at [2]‌: because ‘litigation’ means adversarial litigation, litigation privilege cannot
be claimed in the context of a private non-statutory inquiry.
129  In re L (A Minor) [1996] 2 WLR 395, 408.
130  A A S Zuckerman, ‘Legal Professional Privilege—The Cost of Absolutism’ (1996) 112 Law Quarterly

Review 535, 538.
131  British American Tobacco (Investments) Ltd v USA [2004] EWCA Civ 1064 at [38].
132  Bourns Inc v Raychem Corp [1999] 3 All ER 154, 167. 133  [1898] 1 QB 759.
Legal Professional Privilege 243

as a result of an inadvertent disclosure (in contrast, for example, to a situation where the
document was stolen), the effect of Calcraft has been reversed by rule 31.20 of the Civil
Procedure Rules, which provides: ‘Where a party inadvertently allows a privileged docu-
ment to be inspected, the party who has inspected the document may use it or its contents
only with the permission of the court.’
Even where the rule in Calcraft continues to apply, however, equity has stepped in
to ameliorate the harshness of that rule. If the information has not already been used
in evidence, it may be possible to obtain an injunction to prevent its use.134 It has been
held that the same principles that govern a determination of whether an injunction
should be granted are to apply to a determination under rule 31.20 of whether permis-
sion should be granted for the privileged document or its contents to be used: ‘Whether
the question is whether to grant an injunction or to make an order under that rule, the
court should do what is just and equitable in all the circumstances of the case.’135 For
example, the fact that a document has been made available as a result of an obvious
mistake is a consideration weighing in favour of preventing its use. A comprehensive
summary of the relevant principles to be derived from the case law has been provided
by the Court of Appeal:
(i) A party giving inspection of documents must decide before doing so what privi-
leged documents he wishes to allow the other party to see and what he does not.
(ii) Although the privilege is that of the client and not the solicitor, a party clothes
his solicitor with ostensible authority (if not implied or express authority) to waive
privilege in respect of relevant documents.
(iii) A  solicitor considering documents made available by the other party to litigation
owes no duty of care to that party and is in general entitled to assume that any privi-
lege which might otherwise have been claimed for such documents has been waived.
(iv) In these circumstances, where a party has given inspection of documents, including
privileged documents which he has allowed the other party to inspect by mistake,
it will in general be too late for him to claim privilege in order to attempt to correct
the mistake by obtaining injunctive relief.
(v) However, the court has jurisdiction to intervene to prevent the use of documents
made available for inspection by mistake where justice requires, as for example in
the case of inspection procured by fraud.
(vi) In the absence of fraud, all will depend upon the circumstances, but the court may
grant an injunction if the documents have been made available for inspection as a
result of an obvious mistake.
(vii) A mistake is likely to be held to be obvious and an injunction granted where the
documents are received by a solicitor and:
(a) the solicitor appreciates that a mistake has been made before making some use
of the documents; or
(b) it would be obvious to a reasonable solicitor in his position that a mistake has
been made;

134  See generally Lord Ashburton v Pape [1913] 2 Ch 469; Goddard v Nationwide [1986] 3 WLR 734;

English & American Insurance Co Ltd v Herbert Smith [1988] FSR 232; Guinness Peat Ltd v Fitzroy Robinson
[1987] 1 WLR 1027; Webster v James Chapman & Co [1989] 3 All ER 939; Derby & Co Ltd v Weldon (No 8)
[1990] 3 All ER 762; IBM Corp v Phoenix International [1995] 1 All ER 413.
135  Al Fayed v Commissioner of the Police of the Metropolis [2002] EWCA Civ 780 at [18].
244
Legal Professional Privilege

and, in either case, there are no other circumstances which would make it unjust
or inequitable to grant relief.
(viii) Where a solicitor gives detailed consideration to the question whether the docu-
ments have been made available for inspection by mistake and honestly concludes
that they have not, that fact will be a relevant (and in many cases an important)
pointer to the conclusion that it would not be obvious to the reasonable solicitor
that a mistake had been made, but is not conclusive; the decision remains a matter
for the court.
(ix) In both the cases identified in (vii) (a) and (b) above there are many circumstances
in which it may nevertheless be held to be inequitable or unjust to grant relief, but
all will depend upon the particular circumstances.
(x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.136
While this summary specifically addresses the issue of obtaining injunctions, analogous
considerations are to be applied, as we have seen earlier in this section, to making deter-
minations under rule 31.20.
It would appear that an injunction cannot be granted to an accused in a public pros-
ecution to prevent the Crown from adducing admissible evidence relevant to the offence
charged.137 This is a controversial principle which, as Nourse LJ noted approvingly138 in
Goddard v Nationwide, has not been followed in New Zealand.139
Apart from an injunction and the protection afforded by rule 31.20, one other possible
remedy may be available. The availability of this exclusionary remedy would appear to be
limited to situations in which the privileged document was improperly obtained within
the four walls of the courtroom. The view is taken that ‘for a party to litigation to take
possession by stealth or by a trick of documents belonging to the other side within the
precincts of the court is probably contempt of court’ which ‘the court should not counte-
nance . . . by admitting such documents in evidence’.140

4.13  The Relevance of Section 10 of the Contempt of Court Act 1981

Section 10 of the Contempt of Court Act 1981 was examined in some detail in Chapter 8.
Its relevance in the field of legal professional privilege was considered in Saunders v Punch
Ltd.141 The defendant published an article referring to meetings between the plaintiff and
his former solicitors. The plaintiff obtained an injunction restraining further publication.
He also sought an order for disclosure of the source of the information under section 10
of the Contempt of Court Act 1981, on the basis that such disclosure was necessary in
the interests of justice. The court did not doubt that the interest in the preservation and
protection of legal professional privilege was a ‘towering public interest’.142 In the pre-
sent case, however, the injunction obtained by the plaintiff against the defendant already
provided a high degree of protection, and thus the interests of justice did not require that
disclosure of the source of the information should also be made.

136  Al Fayed v Commissioner of the Police of the Metropolis [2002] EWCA Civ 780 at [16]. See generally

A A S Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (3rd ed 2013) [16.98] ff, [15.214] ff.
137  Butler v Board of Trade [1971] Ch 680, 690; R v Tompkins (1977) 67 Cr App R 181.
138  [1986] 3 WLR 734, 746. 139  R v Uljee [1982] 1 NZLR 561.
140  ITC Ltd v Video Exchange Ltd [1982] Ch 431, 441. See also Goddard v Nationwide [1986] 3 WLR

734, 745.
141 [1998] 1 All ER 234. See generally C Passmore, ‘Journalists and Privilege’ (1998) 148 New Law

Journal 519.
142  [1998] 1 All ER 234, 246.
Further Re ading 245

5  Other Professional Privileges?

English law has steadfastly declined to acknowledge the existence of professional privi-
lege in the context of professions other than the legal profession.143 Rather, as was seen
in Chapter 8, the determination of whether confidential communications occurring in
the context of other professional relationships should be disclosed involves a balancing
exercise:
In relation to all other confidential communications, whether between doctor and patient,
accountant and client, husband and wife, parent and child, priest and penitent, the com-
mon law recognises the confidentiality of the communication, will protect the confiden-
tiality up to a point, but declines to allow the communication the absolute protection
allowed to communications between lawyer and client giving or seeking legal advice. In
relation to all these other confidential communications the law requires the public interest
in the preservation of confidences and the private interest of the parties in maintaining
the confidentiality of their communications to be balanced against the administration
of justice reasons for requiring disclosure of the confidential material. There is a strong
public interest that in criminal cases the innocent should be acquitted and the guilty con-
victed, that in civil cases the claimant should succeed if he is entitled to do so and should
fail if he is not, that every trial should be a fair trial and that to provide the best chance of
these desiderata being achieved all relevant material should be available to be taken into
account. These are the administration of justice reasons to be placed in the balance. They
will usually prevail.144

6  Summary and Conclusion

This chapter has focused primarily on the doctrine of legal professional privilege.
Technically, this encompasses two separate privileges: legal advice privilege, which pro-
tects communications between client and legal adviser, and litigation privilege, which
protects communications between client or legal adviser and a third party, so long as
preparation for litigation is the dominant purpose of the communication. Legal advice
privilege, unlike litigation privilege, is regarded as ‘absolute’ and incapable of being over-
ridden. Whether this can continue to be justified is open to question. Subjected to brief
treatment in the chapter was ‘without prejudice privilege’, aspects of which the House of
Lords and Supreme Court have considered in recent years.

Further Reading
B Thanki (ed), The Law of Privilege (2nd ed 2011)

143  On the US position see E J Imwinkelried, ‘The Paradox of Privilege Law’ in C M Breur, M M Kommer,

J F Nijboer, and J M Reijntjes (eds), New Trends in Criminal Investigation and Evidence—Volume II
(2000); E Imwinkelried, ‘The Rivalry Between Truth and Privilege: The Weakness of the Supreme Court’s
Instrumental Reasoning in Jaffee v Redmond, 518 US 1 (1996)’ (1998) 49 Hastings Law Journal 969.
144  Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274 at [28]

per Lord Scott of Foscote.

10
Character Evidence

1  The Relevance of Evidence of Character

There are particular assumptions that underlie the treatment of evidence of character.
In very simple terms, it is assumed that such evidence is relevant to propensity as well as
to credit. Thus evidence that a person is of good character is considered relevant to her
propensity to act in a manner consistent with that good character, and relevant to her
credibility. Conversely, evidence of a person’s bad character is considered relevant1 to her
propensity to act in a manner consistent with that bad character,2 as well as relevant to
lack of credit.3 The treatment of character evidence as being relevant to propensity means
that, in a criminal case, evidence of a defendant’s bad character may be regarded as rel-
evant to the issue of his guilt of the offence with which he is currently charged.
Such assumptions, however, overlook a number of important points. In the first
place, the prejudicial effect of bad character evidence admitted on the issue of guilt in
a jury trial may be considerable.4 In very broad terms, the risk of prejudice may arise
in one of two ways. First, the jury may overestimate the probative value of the evidence
in question: they ‘may reason that because the accused stole a bottle of whisky from a
supermarket five years earlier he must also have been guilty of the theft of the car with
which he is now charged’. 5 Secondly, even if not in fact satisfied beyond reasonable
doubt of the accused’s guilt, the jury may return a guilty verdict because he or she is
thought to deserve punishment for the previous misconduct. This misconduct may not
have led to a criminal prosecution, or a prosecution in respect of the conduct may have
resulted either in an acquittal or in what the jury regards as unduly lenient punishment.
The first type of prejudice may be termed ‘reasoning prejudice’ and the second ‘moral

1 See generally B J Anderson, ‘Recognizing Character:  A  New Perspective on Character Evidence’

(2012) 121 Yale Law Journal 1912; M Redmayne, ‘The Relevance of Bad Character’ [2002] Cambridge Law
Journal 684.
2  Empirical research ‘has revealed that convictions for certain types of offence appear to increase the

relative risk for subsequent convictions for very serious offences. In particular, the study has highlighted a
number of “unusual” offences which appear to significantly increase the likelihood of a subsequent crim­
inal conviction of murder or serious sexual assault’: K Soothill, B Francis, E Ackerley, and R Fligelstone,
Murder and Serious Sexual Assault: What Criminal Histories Can Reveal About Future Serious Offending
(Police Research Series Paper 144) (2002) vii.
3  For example, ‘a past conviction for dishonesty could be said to be directly relevant to credit, a for-

tiori if the conviction was for giving perjured evidence in court’: Thomas v Comr of Police [1997] 1 All
ER 747, 763.
4  See generally Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal

Proceedings: Previous Misconduct of a Defendant—A Consultation Paper (1996) [7.1]–[7.41].

5  A A S Zuckerman, The Principles of Criminal Evidence (1989) 222.
The Rele vance of E vidence of Char ac ter 247

prejudice’.6 It is notable that, in answer to the question, ‘[if] a defendant has any similar
previous convictions, do you think the jury should always be told about them before
they go to consider their verdict?’, 58 per cent of the jurors in the Crown Court Study
said no, while 42 per cent said yes.7 Mock jury research conducted at Oxford revealed
that, 8 ‘after deliberation, participants who were told of a recent similar conviction rated
the defendant as significantly more likely to have committed the crime with which he
was charged than when they were told that he had a dissimilar conviction or no convic-
tions’. Interestingly, the mock jurors regarded the defendant as less likely to have com-
mitted the crime if they were told that he had a recent dissimilar conviction, than if they
were told nothing about his criminal record. ‘A possible explanation for this finding’,
according to the Law Commission, ‘is that a previous conviction for a specific offence
evokes a stereotype of a person who commits that type of offence rather than the differ-
ent one charged. Another possible explanation . . . [is] that participants felt it was unfair
on the defendant to introduce potentially prejudicial evidence of marginal relevance.’
These results broadly followed the findings of the LSE Jury Project 9 over twenty years
previously.10 Research on magistrates has also demonstrated that ‘any previous convic-
tion, recent or old, affected magistrates’ assessments of the defendant’s likely guilt and
verdicts unfavourably, unless it was both recent and dissimilar to the current charge’.11
Furthermore, another important assumption underlying this area of the law—that
bad character provides a good indication that a person is not worthy of belief—‘contrasts
sharply with the tentative judgements of the psychologists in the matter of credibility
assessment’.12 As the Law Commission notes, psychological research has failed generally
to demonstrate a significant link between bad character evidence and lack of veracity
as a witness.13 This is supported by the finding of the Oxford mock jury research that

6
  A Palmer, ‘The Scope of the Similar Fact Rule’ (1994) 16 Adelaide Law Review 161, 169–72. The
arguments are well described by H L Ho, A Philosophy of Evidence Law: Justice in the Search for Truth
(2008) 290–1 (italics in original): ‘First, there is a danger that the fact-finder will treat the evidence of
previous misconduct as more damning than it actually is. Commonsense assessment of the evidence,
even though made in good faith, may be off the mark. Call this the risk of cognitive error. The cause is
ignorance. Ignorance and irrationality are not the same. . . . Secondly, it is believed that evidence of the
accused’s bad character has the potential to sway the fact-finder unduly against him. Let this be called
the risk of emotivism. Unlike a cognitive error, there is an element of irrationality involved in emotiv-
ism. The fear is of the evidence creating in the fact-finder such antipathy towards the accused that she
feels that he should be punished in any event, regardless of his guilt in respect of the crime with which
he is charged.’
7  M Zander and P Henderson, The Royal Commission on Criminal Justice: Crown Court Study (1993) 210.
8  Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal Proceedings:

Previous Misconduct of a Defendant—A Consultation Paper (1996) [D.21]–[D.23] (italics in original).

See also S Lloyd-Bostock, ‘The Effects on Juries of Hearing about the Defendant’s Previous Criminal
Record: A Simulation Study’ [2000] Criminal Law Review 734.
9  LSE Jury Project, ‘Juries and the Rules of Evidence’ [1973] Criminal Law Review 208.
10  See also J McEwan, The Verdict of the Court: Passing Judgment in Law and Psychology (2003) 168–9.
11 S Lloyd-Bostock, ‘The Effects on Lay Magistrates of Hearing that the Defendant Is of “Good

Character”, Being left to Speculate, or Hearing that he Has a Previous Conviction’ [2006] Criminal Law
Review 189, 211.
12  R Munday, ‘The Paradox of Cross-Examination to Credit—Simply too Close for Comfort’ [1994]

Cambridge Law Journal 303, 308.

13  Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal Proceedings:

Previous Misconduct of a Defendant—A Consultation Paper (1996) [6.16]–[6.17]. J Endres, ‘The Suggestibility
of the Child Witness:  The Role of Individual Differences and their Assessment’ (1997) 1 Journal of
Credibility Assessment and Witness Psychology 44, 45 notes: ‘The general credibility of a witness, a concept
widely favored by the legal profession, does not enjoy great respectability in the eyes of empirical psycholo-
gists. . . . knowledge of a person’s previous behavior in different circumstances certainly does not by itself
248
Char ac ter E vidence

a defendant with a previous conviction (even one for an offence of dishonesty) was not
rated as a less credible witness. Only a previous conviction for an indecent assault (espe-
cially an indecent assault on a child) adversely affected his credibility as a witness in the
eyes of the participants.14

2  Civil Proceedings
In O’Brien v Chief Constable of South Wales Police15 the House of Lords gave thorough
consideration to the issue of the admissibility of bad character evidence in civil cases,16
subjecting previous case law to scrutiny. The case concerned a claim for damages for mali-
cious prosecution and misfeasance in public office. The claimant alleged that two police
officers had been guilty of malpractice in the investigation that led to his conviction. The
House of Lords agreed with the Court of Appeal that evidence of the same officers’ con-
duct in two other investigations was admissible. In the words of Lord Phillips of Worth
Matravers:
I would simply apply the test of relevance as the test of admissibility of similar fact evi-
dence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in
the action.
This is not to say that . . . policy considerations . . . have no part to play in the conduct of
civil litigation. . . . CPR 1.2 requires the court to give effect to the overriding objective of
dealing with cases justly. This includes dealing with the case in a way which is proportion-
ate to what is involved in the case, and in a manner which is expeditious and fair. CPR 1.4
requires the court actively to manage the case in order to further the overriding objec-
tive. CPR 32.1 gives the court the power to control the evidence. This power expressly
enables the court to exclude evidence that would otherwise be admissible and to limit
cross-examination.
Similar fact evidence will not necessarily risk causing any unfair prejudice to the party
against whom it is directed. . . . It may, however, carry such a risk. Evidence of impropriety
which reflects adversely on the character of a party may risk causing prejudice that is
disproportionate to its relevance, particularly where the trial is taking place before a jury.
In such a case the judge will be astute to see that the probative cogency of the evidence
justifies this risk of prejudice in the interests of a fair trial.
Equally, when considering whether to admit evidence, or permit cross-examination,
on matters that are collateral to the central issues, the judge will have regard to the
need for proportionality and expedition. He will consider whether the evidence in
question is likely to be relatively uncontroversial, or whether its admission is likely to
create side issues which will unbalance the trial and make it harder to see the wood
from the trees.17

provide sufficient reason to accept his or her testimony as truthful or to reject it as dishonest. Almost
everyone would lie when their most vital interests are at stake, and even a person with a bad reputation for
frequent lying may become the victim of a crime and give a truthful report about it.’
14  Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal Proceedings:

Previous Misconduct of a Defendant—A Consultation Paper (1996) App D.

15  [2005] UKHL 26, [2005] 2 AC 534. See generally P Keleher, ‘Admissible Evidence’ (2005) 149 Solicitors’

Journal 731.
16  See generally H L Ho, ‘Similar Facts in Civil Cases’ (2006) 26 Oxford Journal of Legal Studies 131;

R Munday, ‘Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence’
(2006) 10 International Journal of Evidence and Proof 81.
17  [2005] UKHL 26, [2005] 2 AC 534 at [53]–[56].
Criminal Proceedings 249

The Court of Appeal’s decision on the facts of the case, endorsed by the House of Lords,
was as follows:
Mr O’Brien has been in prison for 11 years, convicted of a murder which he says he did
not commit and in respect of which his conviction has now been quashed. In order to suc-
ceed in his claim against the police who initiated his prosecution he wishes to adduce the
relevant and logically probative evidence . . . It is notoriously difficult for a claimant in his
position to attract credence to his account if it is merely his word against that of a number
of police officers. If, however, . . . evidence is also given of a number of incidents of similar
malpractice by the same police officer(s), the position may be changed, and the evidence
of malpractice may be overwhelming.18

3  Criminal Proceedings
3.1  The Defendant: Putting Character in Issue
An accused is entitled to introduce evidence of his good character. This may be achieved
by cross-examining prosecution witnesses with a view to establishing his good charac-
ter, or by adducing good-character evidence in chief (in the form of evidence given by
the accused himself or by other defence witnesses). Where an accused has put his or her
character in issue, section 101(1)(f) of the Criminal Justice Act 2003 may come into play
to permit the court to admit evidence of bad character to correct any false impression that
may have been created.
The following cases provide illustrations of actions which have been held to amount to
putting character in issue:
• In R v Ferguson, even though ‘he never intended to put his character in issue’,
the defendant effectively did so by introducing evidence that ‘he had attended
mass and service for over thirty-six years’ and ‘was a member of several religious
societies’.19
• The defendant in R v Baker ‘gave evidence that for four years he had been earning an
honest living, and in our opinion this was evidence of good character’.20
• It was stated in R v Coulman: ‘If you ask a man whether he is a married man with
a family, in regular work, and has a wife and three children, you are setting up his
character’.21
• In R v Samuel the Court of Criminal Appeal observed that the effect of a certain line
of questioning had been ‘to induce the jury to say: “This man is one of those people
who, if he finds property, gives it up; in other words, he is an honest man.” . . . it is
clear that those questions did put the appellant’s character in issue. He was asking
the jury to assume that he was a man who dealt honestly with property which he
found.’22
• In R v Anderson the New Zealand Court of Appeal considered that mounting a
defence to the effect ‘that the accused would not have lost his temper and caused
the injuries to the complainants because of the self-control developed through his
martial arts training’ would have been tantamount to putting character in issue.23

18  [2003] EWCA Civ 1085 at [80]. See also Desmond v Bower [2009] EWCA Civ 667, [2010] EMLR 5.
19  (1909) 2 Cr App R 250, 251. 20  (1912) 7 Cr App R 252, 253.
21  (1927) 20 Cr App R 106, 108. 22  (1956) 40 Cr App R 8, 10–11.
23  [2000] 1 NZLR 667 at [31].
250
Char ac ter E vidence

By contrast, ‘mere assertions of innocence or repudiation of guilt on the part of the pris-
oner’ and ‘reasons given by him for such assertion or repudiation’24 have been held not to
constitute putting character in issue. Further, in R v Lee, the Court of Appeal held that
this court finds it impossible to hold that the questions which were put to the prosecution wit-
ness . . . as to the convictions of the other men, were with a view to establishing the defendant’s
own good character. The questions were put with a view to establishing the bad character
of the two other men and nothing else and the answer ‘Yes’ to the question ‘Had they previ-
ous convictions?’ had nothing whatever to do with the character of the defendant. . . . it is not
implicit in an accusation of dishonesty that the accuser himself is an honest man.25
Finally, in R v Redd it was held that the appellant ‘was not endeavouring to establish a good
character merely because a witness whom he called, voluntarily and probably against the
appellant’s own desire, made a statement as to the appellant’s good character’.26

3.2  The Relevance of Evidence of the Defendant’s Good Character

The precise relevance of evidence of the defendant’s good character27 was considered in
detail by the Court of Appeal in R v Vye.28 It was confirmed that such evidence is relevant
to both credit and propensity (or, more specifically, the lack of propensity). Thus the fact
that a defendant is of good character is thought to indicate that he or she is a person wor-
thy of belief, and a person unlikely to have committed the offence with which he or she
is charged.
So-called Vye directions are required29 to be given to the jury on evidence of a defend-
ant’s good character.30 The Privy Council noted in 2005:
The principles to be applied regarding good character directions have been much more
clearly settled by a number of decisions in recent years, and what might have been prop-
erly regarded at one time as a question of discretion for the trial judge has crystallised into
an obligation as a matter of law. . . . The standard [Vye] direction should contain two limbs,
the credibility direction, that a person of good character is more likely to be truthful than
one of bad character, and the propensity direction, that he is less likely to commit a crime,
especially one of the nature with which he is charged.31
The first limb of the direction, concerning credit, is required to be given where the defend-
ant (1) has given evidence or (2) has not given evidence but relies at trial on exculpatory
pre-trial statements made to the police or to others. The second limb of the direction,
concerning propensity, is always to be given. ‘It is a necessary part of counsel’s duty to his
client to ensure that a good character direction is obtained where the defendant is entitled
to it and likely to benefit from it. The duty of raising the issue is to be discharged by the
defence, not by the judge, and if it is not raised by the defence the judge is under no duty
to raise it himself.’32

24  R v Ellis [1910] 2 KB 746, 763. 25  [1976] 1 WLR 71, 73 (italics added).
26  [1923] 1 KB 104, 107.
27  See generally R Munday, ‘What Constitutes a Good Character?’ [1997] Criminal Law Review 247.
28  [1993] 1 WLR 471.
29  Cf the position in Australia, where good-character directions are not mandatory:  Melbourne v R

[1999] HCA 32.
30  On the position in magistrates’ courts see G Woodward, ‘The Good Character Direction and the

Magistrates’ Court’ (2000) 164 Justice of the Peace 496.

31  Teeluck v The State [2005] UKPC 14, [2005] 1 WLR 2421 at [33].
32  Teeluck v The State [2005] UKPC 14, [2005] 1 WLR 2421 at [33].
Criminal Proceedings 251

The Court of Appeal has emphasized that ‘what is mandatory is to give both limbs of
the direction, not to use any particular form of words’, 33 and that
it must be for the trial judge in each case to decide how he tailors his direction to the
particular circumstances. He would probably wish to indicate, as is commonly done, that
good character cannot amount to a defence. . . . Provided that the judge indicates to the
jury the two respects in which good character may be relevant, ie, credibility and propen-
sity, this court will be slow to criticise any qualifying remarks he may make based on the
facts of the individual case.34
However, ‘character directions should not be given in the form of a question, but in
the form of an affirmative statement. That applies even if the question is a leading
question’. Thus it is ‘far from sufficient’ to give a first-limb direction by merely asking
the question: ‘Is it more likely that he is telling the truth because he is a man of clean
character?’35
Where a defendant of good character is tried jointly with one of bad character, a Vye
direction in respect of the former is still required.36
Clearly ‘good character’ is not an absolute concept and there may arise situations in
which it is uncertain whether an unqualified Vye direction should be given. In R v Gray
the Court of Appeal, after a consideration of the relevant case law, including the decision
of the House of Lords in R v Aziz,37 usefully summarized the applicable principles as
follows:
(1) The primary rule is that a person of previous good character must be given a full
direction covering both credibility and propensity. Where there are no further
facts to complicate the position, such a direction is mandatory and should be
unqualified . . . 
(2) If a defendant has a previous conviction which, either because of its age or its
nature, may entitle him to be treated as of effective good character, the trial judge

33
  R v Miah [1997] 2 Cr App R 12, 22. 34
  R v Vye [1993] 1 WLR 471, 477.
35
  R v Lloyd [2000] 2 Cr App R 355, 360. Lloyd is discussed in R Munday, ‘Judicial Studies Board Specimen
Directions and the Enforcement of Orthodoxy: A Modest Case Study’ (2002) 66 Journal of Criminal Law
158. See also R v Moustakim [2008] EWCA Crim 3096.
36  R v Vye [1993] 1 WLR 471, 479; R v Cain [1994] 1 WLR 1449. The question ‘whether defendants of

disparate characters might require separate trials . . . is a matter for the judge and is to be decided in accord-
ance with well-established principles. Problems such as . . . disparate characters are to be considered and
weighed on a case by case basis. There can certainly be no rule in favour of separate trials for defendants
of good and bad character. Generally, those jointly indicted should be jointly tried’: R v Vye [1993] 1 WLR
471, 479. The presumption in favour of joint trials for those jointly indicted was also emphasized by Lord
Steyn in R v Hayter [2005] UKHL 6, [2005] 1 WLR 605 at [6]‌: ‘The practice favouring joint criminal trials
is clear. It has been accepted for a long time in English practice that, subject to a judge’s discretion to order
separate trials in the interests of justice, there are powerful public reasons why joint offences should be tried
jointly . . . While considerations of the avoidance of delay, costs and convenience, can be cited in favour of
joint trials this is not the prime basis of the practice. Instead it is founded principally on the perception that
a just outcome is more likely to be established in a joint trial than in separate trials. The topic is intimately
connected with public confidence in jury trials. Subject to a judge’s discretion to order otherwise, joint tri-
als of those involved in a joint criminal case are in the public interest and are the norm.’ In Pereira v UK
(Admissibility), Application no 40741/02, 8 Apr 2003, the European Court of Human Rights stated: ‘The
Court notes the presumption applied by the domestic courts that the defendants involved in an offence
should be tried together and considers that this is an unexceptionable approach, based on common sense
principles attaching to the administration of justice.’ See also, generally, A Samuels, ‘Separate Trial for
Co-Defendant?’ (2003) 167 Justice of the Peace 209.
37  [1995] 3 WLR 53.
252
Char ac ter E vidence

has a discretion so to treat him, and if he does so the defendant is entitled to a Vye
direction . . .; but
(3) Where the previous conviction can only be regarded as irrelevant or of no signif-
icance in relation to the offence charged, that discretion ought to be exercised in
favour of treating the defendant as of good character . . . In such a case the defendant
is again entitled to a Vye direction. It would seem to be consistent with principle
(4) below that, where there is room for uncertainty as to how a defendant of effective
good character should be treated, a judge would be entitled to give an appropriately
modified Vye direction.
(4) Where a defendant of previous good character, whether absolute or . . . effective, has
been shown at trial, whether by admission or otherwise, to be guilty of criminal con-
duct, the prima facie rule of practice is to deal with this by qualifying a Vye direction
rather than by withholding it . . .; but
(5) In such a case, there remains a narrowly circumscribed residual discretion to with-
hold a good character direction in whole, or presumably in part, where it would
make no sense, or would be meaningless or absurd or an insult to common sense, to
do otherwise . . . 
(6) Approved examples of the exercise of such a residual discretion are not com-
mon . . . Lord Steyn in Aziz appears to have considered that a person of previ-
ous good character who is shown beyond doubt to have been guilty of serious
criminal behaviour similar to the offence charged would forfeit his right to any
direction . . . 
(7) A direction should never be misleading. Where therefore a defendant has withheld
something of his record so that otherwise a trial judge is not in a position to refer to
it, the defendant may forfeit the more ample, if qualified, direction which the judge
might have been able to give . . .38
The consequences of the absence of a Vye direction have been explained as follows: ‘a
defendant is entitled to have a good character direction from the judge when the facts
warrant it and . . . its absence may be a ground for setting aside a verdict of guilty. It is the
duty of defence counsel to ensure that the defendant’s good character is brought before
the court, and failure to do so and obtain the appropriate direction may make a guilty
verdict unsafe . . . the critical factor is whether it would have made a difference to the result
if the direction had been given’.39
While it may be assumed that the law relating to Vye directions remains unaffected
by the introduction of the bad-character provisions of the Criminal Justice Act 2003,
the stability of such an assumption may be open to doubt. In R v Campbell the Court of
Appeal expressed the view that such directions provide ‘an extreme example of the way
that directions that are desirable by way of assisting the jury to draw logical conclusions
from the evidence have become treated as if they are mandatory requirements of law’.40
Definitive clarification of the current position on Vye directions is therefore urgently
required.

38  [2004] EWCA Crim 1074, [2004] 2 Cr App R 30 at [57]. In R v Hamer the Court of Appeal held that the

issue of a penalty notice for disorder ‘did not impugn the good character of the defendant and had no effect
on his entitlement to a good character direction’: [2010] EWCA Crim 2053, [2011] 1 WLR 528 at [16]. For
recent discussion see R v Press [2013] EWCA Crim 1849.
39  Smith v R [2008] UKPC 34 at [30]. 40  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [22].
Criminal Proceedings 253

3.3  Bad Character

The Criminal Justice Act 200341 replaces the old common law principles on the admissibil-
ity of evidence of bad character.42 The relevant provisions of the Act had a tortuous journey
through Parliament,43 with the Government essentially presenting them as tilting the bal-
ance in criminal justice away from defendants and back in favour of victims and the com-
munity.44 For critics, however, the provisions created an unacceptable risk of prejudice to
accused persons and the potential for miscarriages of justice. It is notable that the initial
reception that the provisions received in the Court of Appeal was not a warm one.45

3.3.1  Specific Statutory Provisions Admitting Bad Character Evidence

The provisions of the Criminal Justice Act 2003 stand alongside any specific statutory
provisions that may have the effect of rendering admissible, in specific circumstances,
evidence of an accused’s previous misconduct. For example, section 1(2) of the Official
Secrets Act 1911 provides:
On a prosecution under this section, it shall not be necessary to show that the accused
person was guilty of any particular act tending to show a purpose prejudicial to the safety
or interests of the State, and, notwithstanding that no such act is proved against him, he
may be convicted if, from the circumstances of the case, or his conduct, or his known
character as proved, it appears that his purpose was a purpose prejudicial to the safety or
interests of the State . . .46
Section 27(3) of the Theft Act 1968 provides:
Where a person is being proceeded against for handling stolen goods (but not for any
offence other than handling stolen goods), then at any stage of the proceedings, if evidence
has been given of his having or arranging to have in his possession the goods the subject
of the charge, or of his undertaking or assisting in, or arranging to undertake or assist in,
their retention, removal, disposal or realisation, the following evidence shall be admis-
sible for the purpose of proving that he knew or believed the goods to be stolen goods:—
(a) evidence that he has had in his possession, or has undertaken or assisted in the reten-
tion, removal, disposal or realisation of, stolen goods from any theft taking place not
earlier than twelve months before the offence charged; and
(b) (provided that seven days’ notice in writing has been given to him of the intention to
prove the conviction) evidence that he has within the five years preceding the date of
the offence charged been convicted of theft or of handling stolen goods.47

41  See generally A Samuels, ‘Evidence of the Bad Character of the Witness’ (2013) 177 Criminal Law and

Justice Weekly 747; J R Spencer, ‘Evidence of Bad Character—Where We Are Today’ [2014] 5 Archbold Review
5; J R Spencer, ‘Evidence of Bad Character—Where We Are Today [Part 2]’ [2014] 7 Archbold Review 6; M
Redmayne, Character in the Criminal Trial (2015); J R Spencer, Evidence of Bad Character (2nd ed 2009).
42  ‘The common law rules governing the admissibility of evidence of bad character in criminal proceed-

ings are abolished’: Criminal Justice Act 2003, s 99(1).

43  See M Zander, ‘The Criminal Justice Bill Gets Royal Assent’ (2003) 153 New Law Journal 1778, 1779.
44  See generally A Turner, ‘The Labour Years—Part 3: Rights and Balance’ (2010) 174 Criminal Law and

Justice Weekly 338.
45  R v Bradley [2005] EWCA Crim 20, [2005] 1 Cr App R 24 at [39]. See generally G Durston, ‘Recent

Developments in Bad Character Evidence’ (2005) 169 Justice of the Peace 378; K Hossein-Bor, ‘Life in Crime’
(2005) 149 Solicitors’ Journal 172. See also R v Campbell [2006] EWCA Crim 1305.
46 Italics added.
47  The House of Lords held in R v Hacker [1994] 1 WLR 1659 that, under s 27(3)(b), it is permissible for the

goods in question to be identified: the prosecution is not restricted to identifying the fact, date, and place of
254
Char ac ter E vidence

The rationale for section 27(3) is a practical one:

Guilty knowledge in handling cases is notoriously difficult to prove . . . People do from
time to time acquire or deal with stolen goods without knowing or believing them to be
stolen, and this possibility can make it difficult for the fact-finders to know whether a
defence of lack of knowledge or belief might be true in the case before them. Their doubts
in such cases can be resolved if they learn that the accused had dealt with other stolen
property in the past, or has previous convictions for handling or theft.48
The provision may, however, be criticized on a number of bases:
In the first place, the subsection relates not only to previous misconduct, but also to mis-
conduct after the time of the alleged offence. Second, paragraph (a) allows evidence to
be given of any act of handling even though no charge has been brought. This is likely to
lead to disputes as to whether the defendant was in possession of stolen goods on a previ-
ous occasion. Further, paragraph (a) applies only if the goods were stolen not more than
12 months before the alleged handling: it is irrelevant when the alleged handler dealt with
those goods. This can lead to bizarre results.49
There have therefore been a number of calls for the repeal of section 27(3), including a
recommendation to that effect from the Law Commission.50

3.3.2  The Criminal Justice Act 2003

Under section 98 of the Criminal Justice Act 2003, evidence of a person’s bad character
is ‘evidence of, or of a disposition towards, misconduct on his part, other than evidence
which (a)  has to do with the alleged facts of the offence with which the defendant is
charged, or (b) is evidence of misconduct in connection with the investigation or pros-
ecution of that offence’. ‘Misconduct’ is defined as ‘the commission of an offence or other
reprehensible behaviour’.51 To put it very simply, therefore, the provisions of the Act
on bad character concern reprehensible behaviour that does not ‘have to do with’ the
alleged facts of the offence charged (that is, reprehensible behaviour that was in some
way extraneous to the alleged facts of the offence charged), or was not committed in
connection with the investigation or prosecution of the offence charged. Two questions
arise for consideration: first, what is meant by ‘reprehensible behaviour’, and, secondly,
what is meant by ‘having to do with’ the alleged facts of the offence charged. By defini-
tion, evidence that is not evidence of bad character is not subject to the bad-character
provisions of the Act.

3.3.2.1  Evidence of bad character

Reprehensible behaviour . . . 
The commission of an offence constitutes misconduct. So too does any other ‘reprehen-
sible behaviour’. The Court of Appeal observed in R v Renda ‘that as a matter of ordi-
nary language, the word “reprehensible” carries with it some element of culpability or
blameworthiness’. In this case it was held that the actions of the defendant in approaching

conviction. This decision has been the subject of criticism: R Munday, ‘Handling Convictions Admissible
under S 27(3) of the Theft Act 1968:  Part  1’ (1995) 159 Justice of the Peace 223; R Munday, ‘Handling
Convictions Admissible under S 27(3) of the Theft Act 1968: Part 2’ (1995) 159 Justice of the Peace 261.
48  Law Commission (Law Com No 273), Evidence of Bad Character in Criminal Proceedings (2001) [4.13].
49  Law Commission (Law Com No 273), Evidence of Bad Character in Criminal Proceedings (2001) [4.21]
(italics in original).
50  Law Commission (Law Com No 273), Evidence of Bad Character in Criminal Proceedings (2001) [11.55].
51  S 112(1).
Criminal Proceedings 255

someone from behind and striking him about the head with a large wooden table leg con-
stituted reprehensible behaviour even if, some 18 months after the incident, he was found
unfit to plead in respect of the incident:
we are unable to accept . . . that the mere fact that the appellant was found unfit to plead
some 18 months after an apparent incident of gratuitous violence has occurred of itself
connotes that at the time of the offence his mental acuity was so altered as to extinguish
any element of culpability when the table leg was used in such a violent fashion. On
the face of it, this was reprehensible behaviour, and there was no evidence . . . to suggest
otherwise.52
In R v Manister53 the defendant was charged with sexual offences allegedly committed
when he was 39 and the complainant, A, was a 13-year-old girl. He denied the offences,
claiming that he and the complainant had just been ‘mates’. The issue arose of the admis-
sibility of evidence of a sexual relationship that had occurred between the defendant and
B, the defendant being 34 and B being 16 at the start of the relationship. The Court of
Appeal held that this did not constitute reprehensible behaviour:
The appellant was significantly older than B. But there was no evidence . . . of grooming
of B by the appellant before she was 16, or that her parents disapproved and communi-
cated their disapproval to the appellant, or that B was intellectually, emotionally or physi-
cally immature for her age, or that there was some other feature of the lawful relationship
which might make it ‘reprehensible’. Indeed it might be inferred from the simple agreed
facts that the relationship with B was a serious one, with some real emotional attachment,
because it lasted some time.54
Thus, because the evidence was not evidence of bad character for the purposes of the
2003 Act, its admissibility was to be determined outwith the provisions of the Act. The
Court of Appeal considered the evidence to be admissible ‘because it was relevant to the
issue of whether the appellant had a sexual interest in A. It was capable of demonstrat-
ing a sexual interest in early or mid-teenage girls, much younger than the appellant, and
therefore bore on the truth of his case of a purely supportive, asexual interest in A.’55 This
decision is troubling. Its consequence is that, perversely, ‘it might in some instances be
in the interests of a defendant to argue that his conduct fell within the definition of bad
character on the grounds that it would guarantee him the safeguards afforded by the
statutory scheme’.56
In R v Hall-Chung,57 taking an overdose in consequence of a quarrel was held not to
be reprehensible behaviour.58 Similarly, in R v Osbourne, shouting at a partner over the
care of a very young child, while ‘not of course to be commended’, was held not to amount
to reprehensible behaviour.59 On the other hand, in R v Norris, where the defendant was
charged with murder in respect of the racist killing of Stephen Lawrence that took place

52  [2005] EWCA Crim 2826, [2006] 1 WLR 2948 at [24].

53  Consolidated with R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
54  [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [94].
55  [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [95].
56  A J Roberts, Commentary on Manister at [2006] Crim LR 438.
57  [2007] EWCA Crim 3429.
58  This behaviour was alleged to have been engaged in by a defence witness shortly before she gave

evidence. The Court of Appeal held that, as it did not constitute reprehensible behaviour, s 100 of the
2003 Act (to be discussed in Section 3.3.2.3) did not apply, and accordingly the prosecution had been
entitled to elicit evidence of this behaviour, which went to the witness’s reliability, in the course of
cross-examining her.
59  [2007] EWCA Crim 481 at [34].
256
Char ac ter E vidence

in 1993, a DVD which showed the defendant displaying racist and violent behaviour in
conversation with his friends in 1994 was held ‘undeniably’ to constitute evidence of rep-
rehensible behaviour.60
The ‘reprehensible behaviour’ may be constituted by behaviour that was the subject of
a prosecution that resulted in an acquittal in a previous trial,61 or behaviour in respect of
which the Crown decided not to prosecute, or behaviour in respect of which the Crown
was prevented from prosecuting by order of the court,62 or behaviour in respect of which
a caution was received.63

 . . . that does not have to do with the alleged facts of the offence charged
To constitute bad character evidence under the 2003 Act, the reprehensible behaviour
may have occurred before or after64 the offence charged was allegedly committed, so long
as it is not behaviour that ‘has to do with’ the alleged facts of the offence charged.65 In R
v McNeill the Court of Appeal considered that ‘the words of the statute “has to [do] with”
are words of prima facie broad application’. They should be interpreted ‘as embracing
anything directly relevant to the offence charged, provided at any rate they were rea-
sonably contemporaneous with and closely associated with its alleged facts’.66 The broad
interpretation advocated by the Court can be illustrated by reference to its decision on
the facts of the case. The defendant was charged with making threats to kill her neigh-
bour. She is alleged to have shouted: ‘I will cut you up, cut you into little pieces, I will kill
you. I know the way out of your flat. I will burn you and kill you all.’ Two days after the
alleged incident, the defendant, by her own admission, said to a local council housing
officer: ‘What do you want me to fucking do? Do you want me to burn it down? Do you
want them to come out in body bags?’ It was held that evidence of the defendant’s behav-
iour to the housing officer was evidence ‘having to do with’ the alleged facts of the offence
charged. As such, it was admissible and the bad character provisions of the 2003 Act had
no application to it.
R v Tirnaveanu67 provides a contrast. The defendant was charged with deception
and forgery offences involving entry documents for illegal immigrants. Evidence of the
defendant’s misconduct in relation to other illegal immigrants was held to constitute evi-
dence of bad character under the 2003 Act; in the circumstances, ‘some nexus in time’68
between that misconduct and the offence charged, which was absent here, was required
to take it outside the provisions of the Act.69
Subsequently, in R v Sule, the Court of Appeal clarified that there is ‘no express or obvi-
ously implicit temporal qualification’ in the words of section 98, which ‘are straightfor-
ward, and clearly apply to evidence of incidents alleged to have created the motive for the

60  [2013] EWCA Crim 712 at [35].

61  R v Edwards [2005] EWCA Crim 3244, [2006] 1 WLR 1524 at [78].
62  R v Ngyuen [2008] EWCA Crim 585, [2008] 2 Cr App R 9 at [37].
63  R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
64  See, eg, the evidence of I and V in R v Somanathan, consolidated with R v Weir [2005] EWCA Crim

2866, [2006] 1 WLR 1885.

65  See generally R Munday, ‘Misconduct that “Has to Do with the Alleged Facts of the Offence with

which the Defendant Is Charged” . . . More or Less’ (2008) 72 Journal of Criminal Law 214.

66  [2007] EWCA Crim 2927, (2007) 172 JP 50 at [14].
67  [2007] EWCA Crim 1239, [2007] 1 WLR 3049.
68  [2007] EWCA Crim 1239, [2007] 1 WLR 3049 at [23].
69  It was held, however, that the evidence of bad character was admissible under s 101(1)(d) of the Act

(discussed under the heading ‘Relevance to Important Issue between Defendant and Prosecution: Section
101(1)(d)’).
Criminal Proceedings 257

index offence. Indeed, where the evidence is reasonably relied upon for motive, it would
be irrational to introduce a temporal requirement.’70

3.3.2.2 Defendants: Section 101
Evidence of a defendant’s bad character is admissible in any one of seven situations,
often referred to as the seven ‘gateways’.71 Section 101(1) of the Criminal Justice Act 2003
provides:
In criminal proceedings evidence of the defendant’s bad character is admissible if, but
only if—
(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 relevant to an important matter in issue between the defendant and the
prosecution,
(e) it has substantial probative value in relation to an important matter in issue between
the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
The five that require closer examination (gateways (c)–(g)) will be considered in separate
subsections of this section under appropriate subheadings. In relation to offences com-
mitted by the defendant as a child, section 108(2) provides:
In proceedings for an offence committed or alleged to have been committed by the defend-
ant when aged 21 or over, evidence of his conviction for an offence when under the age of
14 is not admissible unless—
(a) both of the offences are triable only on indictment, and
(b) the court is satisfied that the interests of justice require the evidence to be admissible.
In R v Hanson72 the Court of Appeal gave detailed consideration to the provisions of the
Criminal Justice Act 2003 in the specific context of evidence of a defendant’s previous
convictions. Extensive reference will be made throughout the chapter to Hanson and the
substantial accumulation of subsequent case law from the Court of Appeal on the provi-
sions of the 2003 Act. The basic approach to be taken to the provisions was expressed by
the Court in Hanson in the following terms:
The starting point should be for judges and practitioners to bear in mind that
Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was
to assist in the evidence based conviction of the guilty, without putting those who are

70 [2012] EWCA Crim 1130, [2013] 1 Cr App R 3, (2012) 176 JP 465 at [11], [12].
71 On the position in Scotland see F Davidson, ‘Evidence of Bad Character in Scots Criminal Law’ [2008]
Juridical Review 95; F Stark, ‘Wiping the Slate Clean: Reforming Scots Law’s Approach to Evidence of the
Accused’s Bad Character’ (2013) 76 Modern Law Review 346.
72 [2005] EWCA Crim 824, [2005] 1 WLR 3169. See generally G Durston, ‘Further Guidance on

Defendant Bad Character Evidence’ (2005) 169 Justice of the Peace 571; R Munday, ‘“Round Up the Usual
Suspects!” or What We Have to Fear from Part 11 of the Criminal Justice Act 2003’ (2005) 169 Justice of the
Peace 328 (taking a somewhat negative view of the decision); J R Spencer, ‘Bad Character Gateways’ (2005)
155 New Law Journal 650 (taking a more sympathetic view of the decision).
258
Char ac ter E vidence

not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecu-

tion applications to adduce such evidence will not be made routinely, simply because a
defendant has previous convictions, but will be based on the particular circumstances
of each case.73
The Court in Hanson also suggested that it would rarely be necessary for the cir-
cumstances of previous convictions to be explored for the purposes of determining
admissibility:
We would expect the relevant circumstances of previous convictions generally to be
capable of agreement, and that, subject to the trial judge’s ruling as to admissibility,
they will be put before the jury by way of admission. Even where the circumstances
are genuinely in dispute, we would expect the minimum indisputable facts to be thus
admitted. It will be very rare indeed for it to be necessary for the judge to hear evidence
before ruling on admissibility under this Act.74
Where an item of evidence is admitted under one of the gateways, it may then be consid-
ered by the trier of fact for its relevance to any issue to which it is relevant; the jury would
not be confined to treating it as relevant, for example, to either propensity or credit only.
In R v Campbell75 the Court of Appeal held, approving R v Highton:76
Once the evidence has been admitted through a gateway it is open to the jury to attach
significance to it in any respect in which it is relevant. To direct them only to have regard
to it for some purposes and to disregard its relevance in other respects would be to revert
to the unsatisfactory practices that prevailed under the old law. . . . 
In considering the inference to be drawn from bad character the courts have in the
past drawn a distinction between propensity to offend and credibility. This distinction
is usually unrealistic. If the jury learn that a defendant has shown a propensity to com-
mit criminal acts they may well at one and the same time conclude that it is more likely
that he is guilty and that he is less likely to be telling the truth when he says that he
is not.77

Important Explanatory Evidence: Section 101(1)(c)

Evidence is important explanatory evidence if, ‘(a) without it, the court or jury would
find it impossible or difficult properly to understand other evidence in the case, and
(b)  its value for understanding the case as a whole is substantial’.78 This gateway ‘no
doubt reflects the common law rule which permitted background or explanatory mater­
ial where the account otherwise to be placed before the court would be incomplete and
incomprehensible’.79 It is notable, however, that the Law Commission had recommended
that, in addition to the two conditions that now feature in section 101(1)(c), there be

73  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [4]‌. See also R v Edwards [2005] EWCA Crim 3244,

[2006] 1 WLR 1524 at [86]: ‘We do . . . give a word of caution for the future about the general undesirability of
the jury being required to explore satellite issues one stage removed from the charges they are trying unless
this is really necessary. Prosecutors should keep this in mind.’
74  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [17].
75  [2007] EWCA Crim 1472, [2007] 1 WLR 2798. See generally A Keane, ‘Flawed Reasoning’ (2008) 158

New Law Journal 168.

76  [2005] EWCA Crim 1985, [2005] 1 WLR 3472.
77  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [25], [28]. See generally P Mirfield, ‘Character and

Credibility’ [2009] Criminal Law Review 135.

78  S 102. For a Canadian perspective, see C Nowlin, ‘Narrative Evidence: A Wolf in Sheep’s Clothing,

Part II’ (2006) 51 Criminal Law Quarterly 271.

79  R v Davis [2008] EWCA Crim 1156, [2009] 2 Cr App R 17, (2008) 172 JP 358 at [33].
Criminal Proceedings 259

a third condition: that ‘the evidence carries no risk of prejudice to the defendant’, or

regardless of such a risk ‘the interests of justice nevertheless require the evidence to be
admissible’.80
‘A simple example’ of evidence admissible under this gateway is evidence ‘that the
offence alleged was committed when the defendant was in prison or police custody, or
involved alleged revenge for a supposed wrong done in the course of some previous crimi-
nal venture.’81 In R v Davis, at the trial of the defendant for the murder of his long-term
partner, referred to by the Court of Appeal as his ‘wife’, the trial judge admitted, as
‘important explanatory evidence’, evidence from the defendant’s former girlfriend Rosie
Thorne about their relationship some twenty years earlier. The Court of Appeal held that
the evidence had been incorrectly admitted, explaining its reasoning fully in these terms:
In our judgment, we think that the judge, highly experienced as he is, nevertheless in
our case erred, and did so clearly, when he was persuaded that Rosie Thorne’s evidence
was admissible as important explanatory evidence on the ground that without it the
jury would find it impossible or difficult properly to understand other evidence in the
trial. The evidence of the wife’s killing and the issue of provocation were in our judgment
entirely comprehensible to the jury without their knowing of Rosie Thorne. The killing
by the appellant was admitted. He admitted doing it, with a knife taken from the kitchen,
striking two blows. . . . A case of provocation needs an intense focus on the events leading
immediately to the death . . . The judge’s reason for admitting the evidence under gateway
(c) appears, on the other hand, to have been his concern that a man with a jealous, aggres-
sive and controlling personality might persuade a jury that he had reacted to things said
or done by his wife which had not been said or done at all. But if so, that must depend
on the evidence in relation to the long relationship with the wife and in particular to the
events leading up to her death, and not on Rosie Thorne. As it was, the jury were assisted
with a great deal of evidence as to the appellant’s relationship with his wife and to its sud-
den deterioration and its causes. It was not in dispute that that long relationship changed
dramatically for its last month or two, and that the reason for that was the appellant’s con-
viction (which turned out to be true, even if his suspicions lay in the wrong direction) that
his wife was having an affair. It was not in dispute that in the last week or so the appellant
used violence on his wife and threatened her with a pen-knife. If in such circumstances,
his jealous and controlling nature led him to that violence, and even to her death, what
need was there for Rosie Thorne’s evidence to make the difference between the jury’s com-
prehension or incomprehension of the evidence in the case? . . . 
. . . It seems to us that however hard one presses the word ‘properly’ in the statutory
test of ‘impossible or difficult properly to understand’ it is illegitimate to press it as far as
admitting the evidence of Rosie Thorne simply on the ground that it might possibly go a
certain distance to meet the appellant’s case at trial. The evidence of Rosie Thorne was not
intended to explain or help the jury to understand the other evidence in the case, but to
contradict the appellant’s case, from a distance of some twenty years, as to the dynamics of
his relationship with his wife and the circumstances leading up to her death. A fortiori it
is difficult to see that Rosie Thorne’s evidence had a ‘substantial’ value for understanding
the case as a whole.82
It would seem, therefore, that admissibility under this gateway is precluded if it is sought
to use the evidence to contradict the defendant’s case.

80 Draft Criminal Evidence Bill, cl 7(4), in Law Commission (Law Com No 273), Evidence of Bad

Character in Criminal Proceedings (2001).

81  R v D (N) [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [22].
82  [2008] EWCA Crim 1156, [2009] 2 Cr App R 17, (2008) 172 JP 358 at [41]–[42] (italics in original).
260
Char ac ter E vidence

The Court of Appeal has cautioned that this gateway is ‘not a substitute for gateway (d).
It is not possible to dress up a failed case of gateway (d) as gateway (c).’83

Relevance to Important Issue between Defendant and Prosecution: Section 101(1)(d)

Prosecution evidence84 of a defendant’s bad character is admissible on the basis of its
relevance to an important matter in issue between the defendant and the prosecution. By
virtue of section 103(1)(a), whether the defendant has ‘a propensity to commit offences
of the kind with which he is charged’ constitutes a matter in issue between the defend-
ant and the prosecution if such propensity is relevant to guilt of the offence charged.
Such propensity may be established by evidence of a conviction of an offence of the same
description85 or an offence of the same category,86 so long as section 103(3) is satisfied.
Section 103(3) requires that the court be satisfied that establishing propensity in such a
manner would not be unjust ‘by reason of the length of time since the conviction or for
any other reason’. It is provided that ‘two offences are of the same description as each
other if the statement of the offence in a written charge or indictment would, in each
case, be in the same terms’, 87 and that ‘two offences are of the same category as each other
if they belong to the same category of offences prescribed for the purposes of this section
by an order made by the Secretary of State’.88 Such an order may be made only in respect
of offences of the same type.89 An order has been made prescribing two categories of
offences: a category of theft offences and a category of sexual offences involving persons
under the age of 16.90
The Court of Appeal made detailed comments in Hanson about the way in which pro-
pensity to commit offences of the kind charged91 may be demonstrated by evidence of
previous convictions:
There is no minimum number of events necessary to demonstrate such a propensity. The
fewer the number of convictions the weaker is likely to be the evidence of propensity.
A single previous conviction for an offence of the same description or category will often
not show propensity. But it may do so where, for example, it shows a tendency to unu-
sual behaviour or where its circumstances demonstrate probative force in relation to the
offence charged . . . Child sexual abuse or fire setting are comparatively clear examples of
such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating
probative force are not confined to those sharing striking similarity. So, a single convic-
tion for shoplifting, will not, without more, be admissible to show propensity to steal. But

83  R v D (N) [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [22]. 84  S 103(6).
85  S 103(2)(a).
86  S 103(2)(b). Note R v Johnson [2009] EWCA Crim 649, [2009] 2 Cr App R 7 at [20]: ‘The error of the

judge was to consider that the prosecution could not establish propensity because conspiracy to burgle
is not an “offence of the same description” or an “offence of the same category” as burglary or another
substantive offence of dishonesty. The true position is that the relevant propensity [may] be established
by an offence of the same description within the meaning of s 103(2)(a) or an offence of the same category
within the meaning of s 103(2)(b). However, . . . other ways of establishing propensity are not excluded.
What s 103(2) does is to provide permissive and simple ways of establishing propensity. Where they do
not apply, propensity may still be established by other means. So if two men have individual records for
relevant offences of burglary, there is no obvious reason why those records should not be used to establish
a relevant propensity if they are later charged together with an offence of conspiracy to burgle. It would be
absurd if their previous individual records could be used to establish propensity if they were later charged
with a joint offence of burglary . . . but they could not be used to establish propensity if the later charge were
one of conspiracy to burgle.’
87  S 103(4)(a). 88  S 103(4)(b). 89  S 103(5).
90  Criminal Justice Act 2003 (Categories of Offences) Order 2004 (SI 2004 No 3346).
91  See generally M Redmayne, ‘Recognising Propensity’ [2011] Criminal Law Review 177.
Criminal Proceedings 261

if the modus operandi has significant features shared by the offence charged it may show
propensity.92
There is, however, a need for caution:  ‘It will often be necessary, before determining
admissibility and even when considering offences of the same description or category, to
examine each individual conviction rather than merely to look at the name of the offence
or at the defendant’s record as a whole.’93 ‘For example, convictions for handling and
aggravated vehicle taking, although within the theft category, do not . . . show, without
more pertinent information, propensity to burgle . . . or to steal’.94 ‘The sentence passed
will not normally be probative or admissible at the behest of the Crown, though it may
be at the behest of the defence. Where past events are disputed the judge must take care
not to permit the trial unreasonably to be diverted into an investigation of matters not
charged on the indictment.’95
Section 101(3) provides that evidence admissible under section 101(1)(d) must not be
admitted ‘if, on an application by the defendant to exclude it, it appears to the court that
the admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it’. In considering the exercise of this dis-
cretion ‘the court must have regard, in particular, to the length of time between the mat-
ters to which that evidence relates and the matters which form the subject of the offence
charged’.96 The Court of Appeal in Hanson had the following to say about the use of
sections 101(3) and 103(3) in the context of evidence of previous convictions:
In a conviction case, the decisions required of the trial judge under section 101(3) and
section 103(3), though not identical, are closely related. It is to be noted that the word-
ing of section 101(3)—‘must not admit’—is stronger than the comparable provision in
section 78 of the Police and Criminal Evidence Act 1984—‘may refuse to allow’. When
considering what is just under section 103(3), and the fairness of the proceedings under
section 101(3), the judge may, among other factors, take into consideration the degree
of similarity between the previous conviction and the offence charged, albeit they are
both within the same description or prescribed category. For example, theft and assault
occasioning actual bodily harm may each embrace a wide spectrum of conduct. This
does not however mean that what used to be referred to as striking similarity must be
shown before convictions become admissible. The judge may also take into consid-
eration the respective gravity of the past and present offences. He or she must always
consider the strength of the prosecution case. If there is no or very little other evidence
against a defendant, it is unlikely to be just to admit his previous convictions, whatever
they are.
In principle, if there is a substantial gap between the dates of commission of and
conviction for the earlier offences, we would regard the date of commission as gener-
ally being of more significance than the date of conviction when assessing admissibil-
ity. Old convictions, with no special feature shared with the offence charged, are likely
seriously to affect the fairness of proceedings adversely, unless, despite their age, it can
properly be said that they show a continuing propensity.97
By virtue of section 103(1)(b), a matter in issue between the defendant and the prosecution
will also include ‘the question whether the defendant has a propensity to be untruthful,

92  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [9]‌.

93  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [12].
94  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [27].
95  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [12]. 96  S 101(4).
97  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [10]–[11].
262
Char ac ter E vidence

except where it is not suggested that the defendant’s case is untruthful in any respect’. The
Court of Appeal in Hanson observed that ‘propensity to untruthfulness’
is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency
with which the words honest and dishonest appear in the criminal law, that Parliament delib-
erately chose the word ‘untruthful’ to convey a different meaning, reflecting a defendant’s
account of his behaviour, or lies told when committing an offence. Previous convictions,
whether for offences of dishonesty or otherwise, are therefore only likely to be capable of
showing a propensity to be untruthful where . . . truthfulness is an issue and, in the earlier
case, either there was a plea of not guilty and the defendant gave an account, on arrest, in
interview, or in evidence, which the jury must have disbelieved, or the way in which the
offence was committed shows a propensity for untruthfulness, for example, by the making of
false representations. The observations made [in relation to propensity to commit offences of
the kind charged] as to the number of convictions apply equally here.98
In R v Campbell the Court of Appeal gave detailed consideration to section 103(1)(b). The
Court emphasized that what gateway (d) requires is relevance to an important matter in
issue between the defendant and the prosecution, and that only rarely will propensity to
be untruthful constitute an important matter in issue (as opposed to constituting a matter
in issue, as it will generally do). In the words of the Court:
It will be comparatively rare for the case of a defendant who has pleaded not guilty not
to involve some element that the prosecution suggest is untruthful. It does not, however
follow, that, whenever there is an issue as to whether the defendant’s case is truthful, evi-
dence can be admitted to show that he has a propensity to be untruthful.
The question of whether a defendant has a propensity for being untruthful will not nor-
mally be capable of being described as an important matter in issue between the defend-
ant and the prosecution. A propensity for untruthfulness will not, of itself, go very far
to establishing the commission of a criminal offence. To suggest that a propensity for
untruthfulness makes it more likely that a defendant has lied to the jury is not likely to
help them. If they apply common sense they will conclude that a defendant who has com-
mitted a criminal offence may well be prepared to lie about it, even if he has not shown
a propensity for lying whereas a defendant who has not committed the offence charged
will be likely to tell the truth, even if he has shown a propensity for telling lies. In short,
whether or not a defendant is telling the truth to the jury is likely to depend simply on
whether or not he committed the offence charged. The jury should focus on the latter
question rather than on whether or not he has a propensity for telling lies.
For these reasons, the only circumstance in which there is likely to be an important
issue as to whether a defendant has a propensity to tell lies is where telling lies is an ele-
ment of the offence charged. Even then, the propensity to tell lies is only likely to be sig-
nificant if the lying is in the context of committing criminal offences, in which case the
evidence is likely to be admissible under section 103(1)(a).99
By marginalizing section 103(1)(b) and placing the focus squarely on section 103(1)(a), the
decision does seem, as one commentator has argued, to make section 103(1)(b) something
of a ‘dead letter’.100

98  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [13].

99  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [29]–[31] (italics in original). Cf R v Doncaster [2008]
EWCA Crim 5, (2008) 172 JP 202:  held that, in a prosecution for cheating the public revenue and false
accounting, propensity for untruthfulness did constitute an important matter in issue, a critical question
being that of the defendant’s honesty or dishonesty in his tax affairs.
100  P Mirfield, ‘Character, Credibility and Truthfulness’ (2008) 124 Law Quarterly Review 1, 5. See also

A Keane, ‘Flawed Reasoning’ (2008) 158 New Law Journal 168.

Criminal Proceedings 263

Furthermore, the Court of Appeal takes the view that

the statute does not create the additional admissibility hurdle of requiring that the impor-
tant matter in issue has been made out by prima facie evidence. . . . Therefore, for the pur-
poses of strict admissibility, when resolving whether the evidence is to be admitted as
relevant to an ‘important matter in issue’ the court does not, as a discrete question, need to
satisfy itself as to the strength of the prosecution’s case as regards the particular ‘matter’.101
Prior to the 2003 Act, the law—as explained in the decision of the House of Lords in DPP
v P102—recognized a rule whereby relevant evidence of an accused’s misconduct on other
occasions was inadmissible on the issue of guilt at the behest of the prosecution. As an
exception to this rule, such evidence was admissible, as so-called ‘similar fact evidence’,
only if its probative value was sufficiently high to justify its admission, notwithstanding
its prejudicial effect.103 Although a determination of whether such evidence was admis-
sible was required as a matter of law, the ‘probative value versus prejudicial effect’ test was
a ‘discretionary’ one in the sense that it was flexible and open-textured. Whether the test
was satisfied necessarily depended on the circumstances of the particular case.
The Law Commission recommended little change to the existing law, essentially advo-
cating that a test of heightened probative value be retained for the admissibility, for the
prosecution, of evidence of bad character on the issue of guilt.104 By contrast, Lord Justice
Auld expressed some sympathy for the view, put forward by Spencer and others,105 that
if no good character evidence emerged in the course of a trial then the jury might well
suspect anyway that the defendant was probably of bad character. Such speculation might
actually cause prejudice to the defendant. It would therefore be simpler and more honest
to have a system involving more routine disclosure of a defendant’s record, for example by
informing the jury at the beginning of the trial whether the defendant had a record and if
so what it was.106 As McEwan notes:
To reveal criminal record in some cases and not others may create the worst of all worlds.
Fact-finders may assume that defendants who do not raise evidence of their own good
character are trying to conceal their previous convictions. Leaving courts to guess what
these previous convictions might be could cause more harm than the truth would have
done. . . . To eliminate uncertainty and arbitrariness, a rational system might routinely
mention the defendant’s previous convictions at the outset of a trial in as unsensational a
fashion as possible.107
Section 101(1)(d) certainly represents an attempt to achieve more routine disclosure to
the jury of evidence of a defendant’s bad character that is adduced by the prosecution for
its relevance to guilt. There was for a time speculation about the extent to which the pro-
vision actually achieved this aim. The argument was that, while it was true that the test
for the admissibility, for the prosecution, of evidence of bad character on the issue of guilt
appeared to have been reduced to one of mere relevance, it might nevertheless be possi-
ble for courts not enamoured of the radical change in the law to water down the effect of
the provision, in the guise for example of avoiding unjustness under section 103(3) or of

101  R v Bowman [2014] EWCA Crim 716 at [64]. 102  [1991] 2 AC 447.
103  See generally H L Ho, ‘Justice in the Pursuit of Truth: A Moral Defence of the Similar Facts Rule’
(2006) 35 Common Law World Review 51.
104  Law Commission (Law Com No 273), Evidence of Bad Character in Criminal Proceedings (2001).
105  For an articulation of this view, see J R Spencer, Evidence of Bad Character (2nd ed 2009).
106  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 11 paras 118–20,

accessible via http://www.criminal-courts-review.org.uk.

107  J McEwan, The Verdict of the Court: Passing Judgment in Law and Psychology (2003) 169–70.
264
Char ac ter E vidence

protecting the fairness of the proceedings under section 101(3). In the words of Dennis: ‘It
would not be surprising, for example, if judges had recourse to the substance of the old
law on similar fact evidence in deciding on the admissibility of prosecution evidence of
propensity’.108 Indeed, certain remarks of Lord Phillips of Worth Matravers in O’Brien v
Chief Constable of South Wales Police implied endorsement of such an approach.109 The
Court of Appeal subsequently made it clear, however, that it considers such remarks,
which are ‘not an essential part of the reasoning in O’Brien, to be capable of being mis-
understood. The 2003 Act completely reverses the pre-existing general rule. Evidence of
bad character is now admissible if it satisfies certain criteria . . ., and the approach is no
longer one of inadmissibility subject to exceptions . . . the pre-existing . . . test which bal-
anced probative value against prejudicial effect is obsolete’.110
R v Somanathan111 provides a neat illustration of the operation of gateway (d). The
defendant, a Hindu priest, was charged with the rape of a woman who attended his tem-
ple. The Court of Appeal held that the evidence of two other women who attended the
temple, I and V, was properly admissible under gateway (d):
In our judgment the probative force of the evidence of I  and V was considerable
because, if accepted, it lent powerful support to what the complainant said about the
appellant’s technique. Without going into detail the evidence of each woman showed
that the appellant sought to strike up a relationship with them when they were at a
low ebb in their lives. He belittled their former or intended partners, he admired their
clothes, and suggested what colours they should wear, he acquired telephone numbers
and addresses and then telephoned regularly, often late at night. He spoke of dreaming
of them, of being married to them in a past life, and of the gods now sending them to
him. He offered gifts and did things to their hands and hair in the temple which were
inappropriate because they were only done when a girl became a woman or by her hus-
band. Finally he sought to visit each of them at home when they were alone, and only
in the case of the complainant did he succeed. . . . The admission of that highly relevant
evidence could not in our judgment, have such an adverse effect on the fairness of the
proceedings that the court ought not to have admitted it, not least because the appel-
lant knew precisely who the witnesses were, and what they would say, so he would be
able where appropriate to challenge what they had said, and to adduce evidence to the
opposite effect.112
By contrast, in R v Clements, evidence was held to have been incorrectly admitted under
gateway (d) in the defendant’s trial for two counts of sexual assault:
In this case the issue was whether the appellant had behaved in the manner described
by the two complainants. There were few similarities between the circumstances which

108  I Dennis, ‘The Criminal Justice Act 2003: Part 2’ [2004] Criminal Law Review 251, 252.
109  [2005] UKHL 26, [2005] 2 AC 534 at [33], [52].
110  R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [35]–[36]; R v Edwards [2005] EWCA Crim

3244, [2006] 1 WLR 1524 at [1]‌(‘Under the new regime it is apparent that Parliament intended that evidence
of bad character would be put before juries more frequently than had hitherto been the case’); R v Bullen
[2008] EWCA Crim 4, [2008] 2 Cr App R 25 at [29] (‘the rules of the common law are not to be brought
back by a restrictive interpretation of ss 101(1)(d) and 103 . . . the statutory language is no doubt intended to
underline the significance of the complete change from the basic position of the common law’); R v Bowman
[2014] EWCA Crim 716 at [64] (‘Section 101(1)(d) is not directed at evidential sufficiency but instead it prin-
cipally concerns the relevance of the evidence that it is proposed should be introduced, and particularly it
focuses attention on the issue of whether the bad character evidence will throw light on the real issue or
issues in the case’).
111  Consolidated with R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
112  [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [39].
Criminal Proceedings 265

they described and those of the earlier offence. The previous conduct had been consen-
sual. This was not. The previous conduct involved a girl aged 14. This involved two adult
women. The previous conduct occurred at a party where the defendant, and possibly the
girl, had had a lot to drink. The conduct in this case did not; it occurred under quite dif-
ferent circumstances. . . . 
In our view, the appellant’s previous conviction was not probative of a propensity to
commit sexual assaults of the kind then under consideration, and to the extent that it
could be said to be probative of a general inability to recognise the normal boundaries
of sexual [propriety] its probative force was, at best, weak. On the other hand, the prej-
udicial effect of admitting a conviction of this kind was likely to be very significant.113
R v D (N) provides a thorough discussion by the Court of Appeal of the following ques-
tion: ‘If a defendant is charged with sexual abuse of a child, is the possession of in­decent
photographs of children capable of being admitted by way of bad character evidence
on the grounds that it is evidence of a sexual interest in children and thus relevant to
an important matter in issue between the defendant and the prosecution?’ The Court
observed:
Evidence that a defendant collects or views child pornography is of course by itself evi-
dence of the commission of a criminal offence. That offence is not itself one involving
sexual assault or abuse or indeed of any sexual activity which is prohibited. It is obvious
that it does not necessarily follow that a person who enjoys viewing such pictures will act
out in real life the kind of activity which is depicted in them by abusing children. It follows
that the evidence of possession of such photographs is not evidence that the defendant has
demonstrated a practice of committing offences of sexual abuse or assault. That, however,
is not the question for the purposes of gateway (d). The question under gateway (d)  is
whether the evidence is relevant to an important matter in issue between the defence and
the Crown. Is it relevant to demonstrate that the defendant has exhibited a sexual interest
in children?
It seems to us that this is a commonsense question which must receive a commonsense
answer. The commonsense answer is that such evidence can indeed be relevant. A sexual
interest in small children or pre-pubescent girls or boys is a relatively unusual character
trait. It may not be quite as unusual as it ought to be, but it is certainly not the norm. The
case against a defendant who is charged with sexual abuse of children is that he has such
an interest or character trait and then, additionally, that he has translated the interest into
active abuse of a child. The evidence of his interest tends to prove the first part of the case.
In ordinary language to show that he has a sexual interest in children does make it more
likely that the allegation of the child complainant is true, rather than having coinciden-
tally been made against someone who does not have that interest. For those reasons, we
are satisfied that evidence of the viewing and/or collection of child pornography is capable
of being admissible through gateway (d).114
Munday would advocate a far more robust approach to the admissibility of propensity
evidence than that facilitated by gateway (d):
The writer would feel easier were propensity evidence not admitted unless the Judge
was satisfied that the accused could be convicted solely on the other evidence in the
case. This would encourage the police to investigate crimes thoroughly and the CPS

113  [2009] EWCA Crim 2726 at [12], [15]. Generally, the case law suggests ‘that the courts are encour-

agingly wary of allowing tribunals of fact to draw inferences concerning a defendant’s propensity from
his isolated acts of misconduct’: R Munday, ‘Single-Act Propensity’ (2010) 74 Journal of Criminal Law
127, 144.
114  [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [4]‌, [6], [7].
266
Char ac ter E vidence

to prosecute properly substantiated allegations. It would deter Judges from allow-

ing weak cases to proceed to final verdict and, who knows, a few years down the
track might avert the humiliation of a succession of character-driven miscarriages of
justice.115

Substantial Probative Value in Relation to Important Issue between Defendant and

Co-Defendant: Section 101(1)(e)
Where evidence of a defendant’s bad character is of substantial probative value in relation
to an important matter in issue between the defendant and a co-defendant, the evidence
may be adduced by the co-defendant116 or elicited by the co-defendant from a witness in
cross-examination.117 ‘The judge must’, the Court of Appeal has stressed, ‘address on the
differing facts of each case the question whether the evidence proposed is capable of hav-
ing substantial probative value, not some possible theoretical relevance to the issue which
arises.’118 The matter in issue may be propensity: for example, in running a ‘cut-throat
defence’, D1 may, in an attempt to cast blame on D2, wish to rely on evidence of D2’s bad
character in order to demonstrate propensity and hence the likelihood that D2 is the sole
guilty party.119 Equally, credit may constitute a matter in issue between a defendant and
a co-defendant. Thus if, for example, ‘the nature or conduct of [D2’s] defence is such as to
undermine [D1’s] defence’, evidence that is ‘relevant to the question whether [D2] has a
propensity to be untruthful’ will be admissible at the behest of D1.120 The Court of Appeal
in R v Lawson made the following observations concerning evidence that might poten-
tially have substantial probative value in relation to the issue of credit for the purposes of
gateway (e):
A defendant who is defending himself against the evidence of a person whose history
of criminal behaviour or other misconduct is such as to be capable of showing him to
be unscrupulous and/or otherwise unreliable should be enabled to present that history
before the jury for its evaluation of the evidence of the witness. Such suggested unreli-
ability may be capable of being shown by conduct which does not involve an offence of
untruthfulness; it may be capable of being shown by widely differing conduct, rang-
ing from large scale drug or people trafficking via housebreaking to criminal violence.
Whether in a particular case it is in fact capable of having substantive probative value
in relation to the witness’s reliability is for the trial judge to determine on all the facts of
the case.121
Thus, ‘not every past conviction or other episode of bad character on the part of a witness
whose truthfulness or credibility is in issue will be capable of having substantial proba-
tive value on that question. . . . it may well be that, for example, a single conviction for an

115  R Munday, ‘“Round Up the Usual Suspects!” or What We Have to Fear from Part 11 of the Criminal

Justice Act 2003’ (2005) 169 Justice of the Peace 328, 335. See also H L Ho, A Philosophy of Evidence
Law: Justice in the Search for Truth (2008) 316: ‘the court must not hold the accused’s discreditable past
directly against him for to do so is to be dismissive of his moral autonomy. His bad history can be used
against him only indirectly, as evidence of his motivational disposition, to support an explanation of his
action that is suggested by other available evidence.’ Cf M Redmayne, ‘The Ethics of Character Evidence’
(2008) 61 Current Legal Problems 371.
116  S 104(2)(a). 117  S 104(2)(b).
118  R v Lawson [2006] EWCA Crim 2572, [2007] 1 WLR 1191 at [39].
119  R v Randall [2003] UKHL 69, [2004] 1 WLR 56. See also R v B (C) [2004] EWCA Crim 1254, [2004]

2 Cr App R 34; R v Price [2004] EWCA Crim 1359; R v Murrell [2005] EWCA Crim 382; R v Rafiq [2005]
EWCA Crim 1423.
120  S 104(1). 121  [2006] EWCA Crim 2572, [2007] 1 WLR 1191 at [34].
Criminal Proceedings 267

offence of shoplifting, especially some time ago, might not be held to be capable of having
substantial probative value on an issue of truthfulness or credibility. . . . the feel of the trial
judge will often be critical.’122
In a murder trial, evidence that, although D2 was acquitted of a murder some 12 years
previously, he admitted to D1 that he was in fact guilty, would be capable of falling under
gateway (e).123
The Court of Appeal has confirmed that
there may be circumstances in which a defendant’s previous convictions may be
admissible through gateway (e) even though he does not give evidence. One example
may be a cut-throat defence where each defendant says in police interviews that it was
not he who assaulted the victim, but it was the co-defendant. In those circumstances,
one co-defendant may be successful in obtaining leave to introduce a string of convic-
tions for violence in order to show that the other has a propensity for committing the
type of offence with which they are both charged.124

Correction of False Impression: Section 101(1)(f)

The Court of Appeal has cautioned that this gateway is ‘in our experience too often
invoked’.125 Its effect is that, where the defendant gives a false impression, ‘evi-
dence which has probative value in correcting it’126 is admissible at the behest of the
prosecution,127 but ‘only if it goes no further than is necessary to correct the false
impression’.128
It is provided that ‘the defendant gives a false impression if he is responsible for the
making of an express or implied assertion which is apt to give the court or jury a false
or misleading impression about the defendant’.129 Unless the defendant withdraws it or
dissociates himself from it,130 he is to be
treated as being responsible for the making of an assertion if—
(a) the assertion is made by the defendant in the proceedings (whether or not in evi-
dence given by him),
(b) the assertion was made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which
he is charged, or
(ii) on being charged with the offence or officially informed that he might be pros-
ecuted for it,
and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question
asked by the defendant that is intended to elicit it, or is likely to do so, or

122  [2006] EWCA Crim 2572, [2007] 1 WLR 1191 at [39].

123  R v Musone [2007] EWCA Crim 1237, [2007] 1 WLR 2467. However, because an application to adduce
the evidence was not made by D1 until after the tenth day of the trial, in breach of notice requirements and
in an attempt to ‘ambush’ D2, the application was held to have been properly refused. See generally L H
Leigh, ‘Hearsay and Bad Character Evidence: Striking at Ambush Defences’ (2007) 171 Justice of the Peace
436. See also R v Lawson [2006] EWCA Crim 2572, [2007] 1 WLR 1191.
124  R v Whitnell [2013] EWCA Crim 161, [2014] 1 Cr App R 9 at [42].
125  R v D (N) [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [21]. 126  S 105(1)(b).
127  S 105(7). 128  S 105(6). 129  S 105(1)(a). 130  S 105(3).
268
Char ac ter E vidence

(e) the assertion was made by any person out of court, and the defendant adduces evi-
dence of it in the proceedings.131
The defendant’s conduct in the proceedings (including the defendant’s appearance or
dress)132 may also be relevant: ‘Where it appears to the court that a defendant, by means
of his conduct (other than the giving of evidence) in the proceedings, is seeking to give
the court or jury an impression about himself that is false or misleading, the court may if
it appears just to do so treat the defendant as being responsible for the making of an asser-
tion which is apt to give that impression.’133
‘For the purposes of section 101(1)(f) of the 2003 Act’, the Court of Appeal has noted in
characteristic fashion, ‘the question whether the defendant has given a “false impression”
about himself . . . and whether there is evidence which may properly serve to correct such
a false impression . . . is fact-specific.’ Thus ‘it needs to be remembered that a defendant
who has on proper analysis done no more than deny the offence is not by doing so giving
a false impression to the court for the purposes of gateway (f). If that were true, virtually
every defendant would be within gateway (f).’134 Further, the Court of Appeal can ‘see no
reason to doubt that section 78 of the [Police and Criminal Evidence Act 1984] should be
considered where section 101(1)(f) is relied upon’.135
In R v Somanathan136 the defendant, a Hindu priest accused of the rape of a woman
who attended his temple at Thornton Heath, was held to have opened up gateway (f):
The appellant put himself forward as a man who not only had no previous convictions
but also enjoyed a good reputation as a priest, particularly at Tooting, where he had
previously been employed, and was the victim of a conspiracy hatched up by mem-
bers of the Mauritian community at Thornton Heath. That . . . opened the gateway
for the admission of evidence as to what happened at Tooting . . . The gateway having
been opened the prosecution was entitled to adduce a full account of what, according
to their witness, brought the Tooting contract to an end. A slightly more difficult
question is whether the evidence of I  and V [two other women who attended the
temple at Thornton Heath] would be admissible to correct a false impression given
by the appellant. . . . In our judgment the evidence of the two women was admissible
under section 101(1)(f) because part of the false impression given by the appellant in
interview and, as it turned out later by calling seven character witnesses, was that he
was a priest who had never behaved inappropriately towards female worshippers at
his temple.137
What would suffice to constitute a withdrawal or disassociation from the making of a
relevant assertion has been explained by the Court of Appeal in these terms:
There is a significant difference between the defendant who makes a specific and posi-
tive decision to correct a false impression for which he is responsible, or to dissociate
himself from false impressions conveyed by the assertions of others, and the defendant
who in the process of cross-examination is obliged to concede that he has been mis-
leading the jury. A concession extracted in cross-examination that the defendant was

131  S 105(2). 132  S 105(5). 133  S 105(4).

134  R v D (N) [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [21]. See also R v Weir [2005] EWCA Crim
2866, [2006] 1 WLR 1885 at [43].
135  R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [44].
136  Consolidated with R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
137  [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [43]. As discussed under the heading ‘Relevance to

Important Issue between Defendant and Prosecution: Section 101(1)(d)’, the evidence of I and V was also
held to be admissible under gateway (d).
Criminal Proceedings 269

not telling the truth in part of his examination-in-chief will not normally amount to a
withdrawal or dissociation from the original assertion . . .138
The Court of Appeal has ‘caution[ed] that if evidence is admissible only under gateway
(f) and not also under gateway (d), considerable care would be required in summing up
because the jury would have to be warned that the evidence is not capable of being used
as evidence of propensity’.139

Attack on Character of Another: Section 101(1)(g)

Where the defendant has made an attack on the character of another, evidence of the
defendant’s bad character becomes admissible on behalf of the prosecution.140 There are
three ways in which such an attack can be made:141
1. The defendant adduces evidence to the effect that that person ‘has committed
an offence (whether a different offence from the one with which the defendant is
charged or the same one)’142 or ‘has behaved, or is disposed to behave, in a reprehen-
sible way’.143
2. The defendant, or a legal representative appointed under section 38(4) of the Youth
Justice and Criminal Evidence Act 1999, ‘asks questions in cross-examination that
are intended to elicit such evidence, or are likely to do so’.
3. Evidence is given that the defendant, on being questioned about the offence under
caution or on being charged with it or officially informed that he or she might be
prosecuted for it, made ‘an imputation about the other person’. This is an assertion
to the effect that the other person ‘has committed an offence (whether a different
offence from the one with which the defendant is charged or the same one)’, or ‘has
behaved, or is disposed to behave, in a reprehensible way’.
The concept of ‘attacking another person’s character’ in section 101(1)(g) mirrors the con-
cept of casting ‘imputations on the character of the prosecutor or the witnesses for the
prosecution, or the deceased victim of the alleged crime’, that was utilized in the previ-
ous legislation.144 The Court in Hanson considered that ‘pre-2003 Act authorities will
continue to apply when assessing whether an attack has been made on another person’s
character, to the extent that they are compatible with [the new legislation]’.145 The follow-
ing guidelines, which emerged from the decision of the House of Lords in R v Selvey ,146
will presumably continue to be applicable:
• ‘cross-examination of the accused as to character [is permitted] both when imputa-
tions on the character of the prosecutor and his witness are cast to show their unre-
liability as witnesses independently of the evidence given by them and also when
the casting of such imputations is necessary to enable the accused to establish his
defence’.
• ‘In rape cases the accused can allege consent without placing himself in peril of such
cross-examination . . . This may be because such cases are sui generis . . ., or on the
ground that the issue is one raised by the prosecution.’

138  R v Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948 at [21].
139  R v D (N) [2011] EWCA Crim 1474, [2013] 1 WLR 676 at [21]. 140  S 106(3).
141  These are set out in s 106(1)(a), s 106(1)(b), and s 106(1)(c). 142  S 106(2)(a).
143  S 106(2)(b).
144  Criminal Evidence Act 1898, s 1(3)(ii), which replaced the Criminal Evidence Act 1898, s 1(f)(ii).
145  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [14]. 146  [1970] AC 304, 339.
270
Char ac ter E vidence

• ‘If what is said amounts in reality to no more than a denial of the charge, expressed,
it may be, in emphatic language, it should not be regarded as coming within the
section’.
The Court of Appeal has provided the following further clarification of the consequences
of the opening of gateway (g):
Although the character is adduced initially for the purpose of allowing the jury to deter-
mine whether the particular attack is true, it will inevitably affect the jury’s assessment
of a defendant’s credibility as a whole. . . . under para (g) all convictions are potentially
relevant to assist the jury to assess the character of the accused, and it is not necessary,
or at least not generally so, for detailed facts about the nature and circumstances of those
convictions to be put before the jury. That is only likely to be required where it is necessary
to demonstrate a propensity for untruthfulness in para (g) cases.147
This gateway is subject to section 101(3). Thus evidence admissible under section 101(1)(g)
is not to be admitted ‘if, on an application by the defendant to exclude it, it appears to the
court that the admission of the evidence would have such an adverse effect on the fair-
ness of the proceedings that the court ought not to admit it’. In considering the exercise
of this discretion ‘the court must have regard, in particular, to the length of time between
the matters to which that evidence relates and the matters which form the subject of the
offence charged’.148 ‘How the trial judge exercises that discretion’, the Court of Appeal has
observed, ‘is a matter for him or her, but it seems to this Court that it would be unusual
for evidence of a defendant’s bad character to be admitted when the only basis for so
doing was an attack on the character of a non-witness who is also a non-victim. The fair-
ness of the proceedings would normally be materially damaged by so doing.’149 It would
appear, however, that the defendant’s motive for doing what amounted to attacking the
character of another is not a factor to be taken into account in considering the exercise of
the discretion.150
In R v Ball151 the defendant was tried for rape. When interviewed by the police, he
had told them that the complainant was sexually promiscuous and had had sexual
intercourse with most of the men in the local pub: she was ‘easy’; ‘she’s a bag really, you
know what I mean, a slag’. The prosecution introduced these comments in evidence as
part of the defendant’s interviews. The Court of Appeal agreed that an attack had been
made on the complainant’s character for the purposes of gateway (g). In R v Lamaletie
the defendant, who was charged with inflicting grievous bodily harm on a Mr Yadessa,
‘had in interview alleged not simply that Mr Yadessa struck the first blow but that he
“was attacking me everywhere”’.152 The Court of Appeal had no doubt that this opened

147  R v Clarke [2011] EWCA Crim 939, (2011) 175 JP 281 at [29]. See also R v M (E) [2014] EWCA Crim

1523, [2014] 2 Cr App R 29 at [19]:  ‘There is . . . no requirement that the evidence of the defendant’s bad
character, to be admitted under gateway (g), should reach any particular probative value or that the credit-
worthiness of the defendant should be an issue of substantial importance in the case, or that the conviction
should demonstrate any propensity for untruthfulness (compare in this respect s 100(1)(b), s 101(1)(e) and
s 103(1)(b) of the Act). These are factors that are relevant to the fairness of the proceedings but the principal
purpose of the s 101(1)(g) gateway is to provide the jury with information relevant to the question whether
the defendant’s attack on another person’s character is worthy of belief. The issue is one of general cred-
ibility . . . and not propensity to falsehood.’
148  S 101(4). 149  R v Nelson [2006] EWCA Crim 3412 at [16].
150  R v Bovell [2005] EWCA Crim 1091, [2005] 2 Cr App R 27 at [31]–[32]. See also R v Woodhead [2011]

EWCA Crim 472.
151  Consolidated with R v Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948.
152  [2008] EWCA Crim 314, (2008) 172 JP 249 at [8]‌.
Criminal Proceedings 271

up gateway (g), but acknowledged that ‘it was of course open to the Recorder to take
into account . . . the fact that the allegation was made in the context of raising a defence
of self-defence as one of the considerations relevant to the exercise of his discretion
under s 101(3)’.153

Directions to the Jury
The Court of Appeal in R v Campbell,154 in noting that ‘it is plainly desirable to give the
jury a direction in respect of [bad] character evidence’,155 provided the following guid-
ance on the issue:
• ‘reciting to the jury the statutory wording in relation to the relevant gateway is likely
to be unhelpful’.156 ‘If the jury is told in simple language and with reference, where
appropriate, to the particular facts of the case, why the bad character evidence may
be relevant, this will necessarily encompass the gateway by which the evidence was
admitted.’157
• ‘In the rare case where evidence of bad character has been admitted because the
question of whether the defendant has a propensity to be untruthful is an important
matter in issue between the defendant and the prosecution, the direction should
always explain the relevance of the evidence with reference to the particular facts
which make that matter important.’158
• ‘Where evidence of a criminal or otherwise blameworthy act on the part of the
defendant is adduced because it bears on a particular issue of fact and this evidence
has no bearing on the defendant’s propensity to commit the offence charged, this
should be made plain to the jury.’159
• ‘It is, of course, clearly highly desirable that the jury should be warned against
attaching too much weight to bad character evidence let alone concluding that the
defendant is guilty simply because of his bad character.’160
The Court, while emphasizing that this was not to be treated as a specimen direction
for use in future cases,161 provided an example of a direction that might have been
appropriate in the circumstances of the case (where evidence had been admitted under
gateway (d)):
Members of the jury. In the old days juries were usually not told about a defend-
ant’s previous convictions. This was because of the fear that such information would
prejudice the jury against the defendant and that they would give it more weight than
it deserved. Today such evidence is often admitted because a jury understandably
want to know whether what the defendant is alleged to have done is out of character,
or whether he has behaved in a similar way before. Of course a defendant’s previous
convictions are only background. They do not tell you whether he has committed the

153  [2008] EWCA Crim 314, (2008) 172 JP 249 at [9]‌.

154 [2007] EWCA Crim 1472, [2007] 1 WLR 2798. See generally L H Leigh, ‘Back to the Drawing
Board: Directions on Bad Character Evidence’ (2007) 171 Justice of the Peace 636.
155  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [32].
156  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [37].
157  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [38].
158  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [39].
159  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [40].
160  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [43].
161  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [45].
272
Char ac ter E vidence

offence with which he is charged in this case. What really matters is the evidence that
you have heard in relation to that offence. So be careful not to be unfairly prejudiced
against the defendant by what you have heard about his previous convictions. In the
present case you have heard evidence from Miss Lee that the defendant shut her in her
bedroom and would not allow her to go out. That he threatened her and frightened
her. That on one occasion when she tried to escape he dragged her back upstairs by
her hair. Then, when she did escape, he banged her head against a wall and tried to
strangle her. The defendant says that this is all a pack of lies; Miss Lee has made it all
up; he never tried to stop her leaving her flat and was not violent to her. You can only
convict the defendant if you are sure that it is Miss Lee who has been telling you the
truth. When considering that you may consider it relevant that the defendant has been
convicted of using violence on two previous girlfriends in the manner that you have
heard. The prosecution say that this shows that he had a tendency to use violence on
his girlfriends and that this supports Miss Lee’s evidence that he treated her in the
same way. He, for his part, says that whatever he may have done in the past, Miss Lee’s
evidence is simply invention. It is for you to decide the extent to which, if at all, the
defendant’s previous convictions assist you in deciding whether Miss Lee has been
telling you the truth.162

Appeals
The Court of Appeal in Hanson made the following observations in relation to appeals
based on the admission of evidence of a defendant’s bad character:
this court will be very slow to interfere with a ruling . . . as to admissibility . . . It will not
interfere unless the judge’s judgment as to the capacity of prior events to establish propen-
sity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury
sense . . .163
Furthermore, if, following a ruling that evidence of bad character is admissible,
a defendant pleads guilty, it is highly unlikely that this court will entertain an appeal
against conviction . . .164

Cross-Admissibility and Contamination

Where the prosecution adduces bad character evidence in its case in chief under
section 101(1)(d) and section 103(1)(a), this evidence may consist of evidence of another
alleged offence for which the defendant is being tried at the same trial. This is made
clear by section 112(2), which provides: ‘Where a defendant is charged with two or
more offences in the same criminal proceedings, this Chapter (except section 101(3))
has effect as if each offence were charged in separate proceedings; and references to the
offence with which the defendant is charged are to be read accordingly.’ Section 112(2),
the Court of Appeal explained in R v Chopra, ‘means that where a defendant is charged
upon several counts the evidence which goes to suggest that he committed count 2 is,
so far as count 1 is concerned, bad character evidence within the Act. Accordingly, the
evidence relating to count 2 can be admissible evidence in relation to count 1 if, but

162  [2007] EWCA Crim 1472, [2007] 1 WLR 2798 at [44].

163  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [15]. This is because ‘the trial judge’s “feel” for the case
is usually the critical ingredient of the decision at first instance which this court lacks. Context therefore is
vital. The creation and subsequent citation from a vast body of so-called “authority”, in reality representing
no more than observations on a fact-specific decision of the judge in the Crown Court, is unnecessary and
may well be counter-productive’: R v Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948 at [3]‌. See also
R v Lawson [2006] EWCA Crim 2572, [2007] 1 WLR 1191 at [39].
164  [2005] EWCA Crim 824, [2005] 1 WLR 3169 at [16].
Criminal Proceedings 273

only if, it passes through one of the gateways in s 101. The same applies vice versa and
however many counts there may be.’165 In Chopra itself, the defendant, a dentist, had been
convicted in the same trial of the indecent touching of two teenage patients. The Court
of Appeal agreed that the evidence of the two complainants had been cross-admissible
under gateway (d):
Each complainant said that in the course of his dental examination of their mouths the
appellant had taken the opportunity to squeeze their breasts, for which there was no
colourable dental reason. Each said that he did it without any form of endearment or
suggestive remark, or attempt to engage them in private conversation about their private
lives and indeed without speaking, simply affecting to be concentrating upon his dental
examination. Each was a patient. Each was a teenager. If it was accepted, that evidence
does tend to establish a propensity occasionally to molest young female patients in the
course of examination. There was, as it seems to us, sufficient connection and similarity
between the allegations which were made to make them cross-admissible under the new
Act. Put simply, if . . . two girls . . . said this it did make it more likely that it was true than
if only one of them said it.166
In R v Freeman the Court of Appeal made the following observations on the task of the
jury where evidence is cross-admissible:
In some . . . judgments . . ., the impression may have been given that the jury, in its deci-
sion making process in cross-admissibility cases[,]‌should first determine whether it is
satisfied on the evidence in relation to one of the counts of the defendant’s guilt before
it can move on to using the evidence in relation to that count in dealing with any other
count in the indictment. . . . We consider that this is too restrictive an approach. Whilst
the jury must be reminded that it has to reach a verdict on each count separately, it is
entitled, in determining guilt in respect of any count, to have regard to the evidence
in regard to any other count . . . It may be that in some cases the jury will find it easier
to decide the guilt of a defendant on the evidence relating to that count alone. That
does not mean that it cannot, in other cases, use the evidence in relation to the other
count or counts to help it decide on the defendant’s guilt in respect of the count that
it is considering. To do otherwise would fail to give proper effect to the decision on
admissibility.167
It might perhaps be helpful to have some indication of the circumstances in which it
might be ‘easier’ for a jury to determine guilt in relation to one count without recourse to
evidence relating to any other count.
In a situation of cross-admissibility there is potentially a danger that the evidence of
the complainants in respect of the offences for which the defendant is being tried may
have become ‘contaminated’ in some way. Such contamination may well be the result of
collusion between the complainants, who may have put their heads together to concoct
a story against the accused. Alternatively, there may be a more innocent explanation for
the contamination: distortions may have crept in over time as the complainants repeat-
edly discussed the incidents amongst themselves. Indeed, contamination ‘may happen

165  [2006] EWCA Crim 2133, [2007] 1 Cr App R 16 at [14]. See S Forster, ‘Cross-Admissibility of Bad

Character Evidence’ (2011) 175 Criminal Law and Justice Weekly 274; R Fortson and D Ormerod, ‘Bad
Character Evidence and Cross-Admissibility’ [2009] Criminal Law Review 313.
166  [2006] EWCA Crim 2133, [2007] 1 Cr App R 16 at [22]. See also R v Wallace [2007] EWCA Crim 1760,

[2008] 1 WLR 572.
167  [2008] EWCA Crim 1863, [2009] 1 WLR 2723 at [20].
274
Char ac ter E vidence

without the witnesses even communicating directly with each other, eg where the wit-
nesses are inexpertly questioned by the same investigative team’.168
Following the approach previously taken at common law,169 the Criminal Justice Act 2003
makes it clear that the admissibility of bad character evidence is to be determined on the
assumption that it is true.170 Thus, even where it is alleged that two separate rape complaints
are the result of collusion between the complainants, the court must assume that the evidence
which they will give is true for the purpose of admissibility, and leave it to the jury to decide
what, if any, weight should be given to the evidence. This is subject, however, to the following
qualification: ‘In assessing the relevance or probative value of an item of evidence for any pur-
pose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis
of any material before the court (including any evidence it decides to hear on the matter), that
no court or jury could reasonably find it to be true.’171 Further, section 107 provides:
(1) If on a defendant’s trial before a judge and jury for an offence—
(a) evidence of his bad character has been admitted under any of paragraphs (c) to
(g) of section 101(1), and
(b) the court is satisfied at any time after the close of the case for the prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evidence to
the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers
that there ought to be a retrial, discharge the jury. . . .
(5) For the purposes of this section a person’s evidence is contaminated where—
(a) as a result of an agreement or understanding between the person and one or more
others, or
(b) as a result of the person being aware of anything alleged by one or more others
whose evidence may be, or has been, given in the proceedings,
the evidence is false or misleading in any respect, or is different from what it would
otherwise have been.
The following detailed comments on section 107, by the Court of Appeal in R v C,172 are
self-explanatory:
Strikingly, the unusual feature of section 107 is that, after the admission of evidence, a
duty is imposed on the judge to make what is in truth a finding of fact. Plainly if the case
goes to the jury issues such as contamination and collusion will be left to them in the
familiar way, with appropriate directions and warnings. But the decision at the end of
the prosecution case, or indeed at any later stage in the trial, whether the evidence of a
witness is false, or misleading, or different from what it would have been if it had not been
contaminated, requires that the judge should form his own assessment, or judgment, of
matters traditionally regarded as questions of fact for the exclusive decision of the jury.
 . . . The effect of section 107 is to reduce the risk of a conviction based on over-reliance
on evidence of previous misconduct and the provision acknowledges the potential danger

168  Law Commission (Consultation Paper No 141), Criminal Law—Evidence in Criminal Proceedings:

Previous Misconduct of a Defendant—A Consultation Paper (1996) [10.86] n 105.

169  R v H [1995] 2 AC 596. 170  S 109(1). 171  S 109(2).
172  [2006] EWCA Crim 1079, [2006] 1 WLR 2994. See generally D Rhodes, ‘Life in Crime’ (2006) 150

Solicitors’ Journal 731.
Criminal Proceedings 275

that, where the evidence is contaminated, the evidence of bad character may have a dis-
proportionate impact on the evaluation of the case by the jury. In other words the dan-
gers inherent in contamination may be obscured by the evidence of the defendant’s bad
character.
The duty under section 107 does not arise unless the judge is satisfied that there has
been important contamination of the evidence. If he is so satisfied, what then follows is
not a matter of discretion. The consequences are prescribed by statute. Whether or not
there would on the conventional approach be a case to answer, the trial should be stopped.
The jury must either acquit the defendant in accordance with a judicial direction, or if the
judge considers that the case ought to proceed to a retrial, the jury will be discharged from
returning a verdict and a retrial ordered. . . .
In future, we suggest that when, in answer to a submission by the Crown at the start
of the trial that the defendant’s previous bad character should be admitted before the
jury, counsel for the defendant . . . makes a responsible submission that there is material
in the prosecution case itself to suggest that there was or may have been witness con-
tamination, it would normally be sensible for the judge to postpone a decision until the
suggested contaminated evidence has been examined at trial. If the decision to admit
bad character evidence were postponed until the evidence of the complainants, and
any other witnesses, were concluded, the judge, when deciding whether to admit the
evidence of bad character, would have well in mind the precise details of the evidence
actually given, with such weaknesses and problems as may have emerged. He would not
then be acting on his judgment about anticipated evidence, but making a decision based
on the evidence itself.173
The Court has also cautioned ‘that section 107 should not be misused’; there is no ‘justi-
fication for a submission which, in truth, is no more than a reiteration of the arguments
advanced by counsel against the admission of this evidence’.174

Trials in which Evidence Is not Cross-Admissible

What of the situation where a defendant is charged with more than one offence at the
same trial, and it is determined that the evidence is not cross-admissible? In such a case
there is obviously a substantial danger of prejudice to the defendant if the trial were to
proceed, as the jury would be hearing inadmissible evidence. The defence may wish there-
fore to apply for separate trials. Section 5(3) of the Indictments Act 1915 gives the court a
discretion to sever the indictment and order separate trials:
Where, before trial, or at any stage of a trial, the court is of opinion that a person accused
may be prejudiced or embarrassed in his defence by reason of being charged with more
than one offence in the same indictment, or that for any other reason it is desirable to
direct that the person should be tried separately for any one or more offences charged
in an indictment, the court may order a separate trial of any count or counts of such
indictment.
It would seem, however, that the fact that the evidence is not cross-admissible is merely
one factor to be considered by the court in having regard to the discretion to order
separate trials; it is not in any way decisive. Lord Taylor of Gosforth CJ stated in R v
Christou:
the factors a judge should consider . . . will vary from case to case, but the essential cri-
terion is the achievement of a fair resolution of the issues. That requires fairness to the

173  [2006] EWCA Crim 1079, [2006] 1 WLR 2994 at [20]–[23].

174  R v Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948 at [27].
276
Char ac ter E vidence

accused but also to the prosecution and those involved in it. Some, but by no means an
exhaustive list, of the factors which may need to be considered are:—how discrete or
inter-related are the facts giving rise to the counts; the impact of ordering two or more
trials on the defendant and his family, on the victims and their families, on press pub-
licity; and importantly, whether directions the judge can give to the jury will suffice to
secure a fair trial if the counts are tried together. In regard to that last factor, jury trials
are conducted on the basis that the judge’s directions of law are to be applied faithfully.
Experience shows . . . that juries, where counts are jointly tried, do follow the judge’s
directions and consider the counts separately.
Approaching the question of severance as indicated above, judges will often consider it
right to order separate trials. But I reject the argument that either generally or in respect
of any class of case, the judge must so order.175
Inasmuch as section 5(3) of the Indictments Act 1915 gives the court a discretion
as to whether to order separate trials, it is clearly right that the House of Lords has
decided that this discretion cannot be fettered. Perhaps the appropriate solution
lies, therefore, in amending the legislation so that, ‘where evidence of two complain-
ants is inadmissible against each other, separate trials must be held, if the defence
so apply. If this were to increase the number of trials, at a greater cost to the pub-
lic, it would be an unfortunate but unavoidable result.’176 Such an approach has been
advocated in Australia:  ‘If the evidence admissible on each count is not admissible
on the other counts and there is a consequent risk of impermissible prejudice to an
accused in the conduct of a single trial on all counts—and there usually is such a
risk in sexual cases—separate trials should be ordered’.177 In the absence of reform
of English law along these lines, it is of note that strong directions are to be given to
the jury:
Where . . . the charges are not severed, it is essential that the jury is directed in clear
terms that the evidence on each set of allegations is to be treated separately and that the
evidence in relation to an allegation in respect of one victim cannot be treated as proof
of an allegation against the other victim. If such a warning in clear terms is not given
there is the risk that the jury may wrongly regard the evidence as cross-admissible in
respect of each separate set of allegations . . .178
It is sobering to find, however, that ‘evidence from empirical studies involving mock
jurors suggests that such directions are ineffective’.179

3.3.2.3 Non-Defendants: Section 100
Section 100(1) provides:
In criminal proceedings evidence of the bad character of a person other than the defend-
ant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and

175  [1997] AC 117, 129.

176 C Mortimore, ‘Severance Revisited’ (1996) 140 Solicitors’ Journal 611, 611. See also R Munday,
‘Vaguely Similar Facts and Severance of Counts’ (1996) 160 Justice of the Peace 663.
177  Hoch v R (1988) 165 CLR 292, 298 per Brennan and Dawson JJ.
178  R v D [2003] EWCA Crim 2424, [2004] 1 Cr App R 19 at [26].
179  P Lewis, Delayed Prosecution for Childhood Sexual Abuse (2006) 198.
Criminal Proceedings 277

(ii) is of substantial importance in the context of the case as a whole,

or
(c) all parties to the proceedings agree to the evidence being admissible.

Important Explanatory Evidence

Evidence is important explanatory evidence if, ‘(a) without it, the court or jury would find
it impossible or difficult properly to understand other evidence in the case, and (b) its
value for understanding the case as a whole is substantial’.180 Leave of the court is required
for evidence to be given on this basis.181

Substantial Probative Value in Relation to an Important Issue

The Act specifically provides that in assessing probative value the court is to have regard
to any factors it considers relevant, but must have regard to these factors:
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where—
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity
between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the
alleged instances of misconduct;
(d) where—
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was
responsible each time.182
Leave of the court is required for evidence to be given on this basis.183
The Court of Appeal has accepted that ‘s 100 . . . is not limited in such a way as to exclude
evidence either of the propensity of a non-defendant or his credibility. Both may have
substantial probative value in relation to a matter which is in issue in the proceedings.’184
On the latter (credibility), the Court has elaborated further as follows:
It seems to us that the trial judge’s task will be to evaluate the evidence of bad character
which it is proposed to admit for the purpose of deciding whether it is reasonably capa-
ble of assisting a fair-minded jury to reach a view whether the witness’s evidence is, or is
not, worthy of belief. Only then can it properly be said that the evidence is of substantial
probative value on the issue of creditworthiness. . . . It does not seem to us that the words
‘substantial probative value’, in their section 100(1)(b) context, require the applicant to
establish that the bad character relied on amounts to proof of a lack of credibility of the wit-
ness when credibility is an issue of substantial importance, or that the convictions demon-
strate a tendency towards untruthfulness. The question is whether the evidence of previous

180  S 100(2). 181  S 100(4). 182  S 100(3). 183  S 100(4).

184  R v GH [2009] EWCA Crim 2899, (2009) 174 JP 203 at [15].
278
Char ac ter E vidence

convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a

fair-minded tribunal upon the issue of the witness’s creditworthiness. When the evidence
is reasonably capable of giving assistance to the jury in the way we have described, it should
not be assumed that the jury is not capable of forming an intelligent judgment whether
it in fact bears on the present credibility of the witness and, therefore, upon the decision
whether the witness is telling the truth. Jurors can, with suitable assistance from the judge,
safely be left to make a proper evaluation of such evidence just as they are when considering
issues of credibility and propensity arising from a defendant’s bad character.
The first question for the trial judge under section 100(1)(b) is whether creditworthiness
is a matter in issue which is of substantial importance in the context of the case as a whole.
This is a significant hurdle. Just because a witness has convictions does not mean that the
opposing party is entitled to attack the witness’s credibility. If it is shown that creditworthi-
ness is an issue of substantial importance, the second question is whether the bad character
relied upon is of substantial probative value in relation to that issue. Whether convictions
have persuasive value on the issue of creditworthiness will, it seems to us, depend prin-
cipally on the nature, number and age of the convictions. However, we do not consider
that the conviction must, in order to qualify for admission in evidence, demonstrate any
tendency towards dishonesty or untruthfulness. The question is whether a fair-minded
tribunal would regard them as affecting the worth of the witness’s evidence.185
The following general guidance has also been forthcoming:
When it is assessing the probative value of the evidence in accordance with section
100(1)(b) . . ., among the factors relevant to the admissibility judgment, the court should
reflect whether the admission of the evidence relating to the bad character of the witness
might make it difficult for the jury to understand the remainder of the evidence, and
whether its understanding of the case as a whole might be diminished. In such cases the
conclusion may be that the evidence is not of substantial probative value in establishing
the propensity in or lack of credit worthiness of the witness, or that the evidence is not of
substantial importance in the context of the case as a whole, or both. If so, the precondi-
tions to admissibility will not [be] established.186
In R v Osbourne187 the defendant was charged with robbing the licensee of a pub. The
trial judge allowed the defence to ask the licensee, the main prosecution witness, about
his general conduct and management of the premises (including the provision of free
drink) which produced persistent till shortages. This was considered relevant to whether
he had a motive for falsely claiming that the defendant had robbed him. The trial judge
did not, however, allow the defence to ask the licensee about his allegedly permitting
drug use on the premises. The Court of Appeal approved of both of these decisions of the
trial judge. In R v Yaxley-Lennon188 the Court of Appeal held that, in a trial for assault,
evidence that the main defence witness had received a caution for possessing cocaine
was inadmissible: the caution had come well after the time of the relevant incident, and
there was no suggestion of the witness’s credibility being affected by any drug use.

Evaluation of Section 100
The regulation by section 100 of the Criminal Justice Act 2003 of evidence of the bad
character of non-defendants is novel. While the provision may well have the effect of
preventing mud-slinging by defendants, it does apply to the prosecution as well as the

185  R v Brewster [2010] EWCA Crim 1194, [2011] 1 WLR 601 at [22]–[23].
186  R v Dizaei [2013] EWCA Crim 88, [2013] 1 WLR 2257 at [38].
187  Consolidated with R v Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948.
188  Consolidated with R v Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885.
Further Re ading 279

defence. In some cases it may simply serve to add an extra procedural hurdle to a prosecu-
tion. For instance, where a charge arises out of a street disturbance, the prosecution may
wish to describe incidents of misconduct by a number of persons not on trial. Under sec-
tion 100 it will be necessary for the prosecution to justify the inclusion of each such item
of evidence and to seek the leave of the court to adduce it.

4  Summary and Conclusion

In civil cases, the admissibility of evidence of a party’s bad character is governed sim-
ply by the test of relevance. In criminal proceedings, the entitlement of a defendant to a
direction on the significance of his or her good character is taken seriously. The Criminal
Justice Act 2003 now provides a comprehensive statement of the law on evidence of bad
character in criminal proceedings. The issue of what constitutes evidence of bad charac-
ter has generated some case law. Any evidence not considered to constitute evidence of
bad character is, by definition, not subject to the relevant provisions of the Act. Section
100 deals with evidence of the bad character of non-defendants, while section 101 pro-
vides ‘gateways’ for the admissibility of evidence of defendants’ bad character. Of par-
ticular note is gateway (d), which replaces the ‘similar fact’ rule at common law with
a principle whereby evidence of a defendant’s bad character is prima facie admissible
on the issue of guilt so long as it is relevant. The rapidly growing body of case law from
the Court of Appeal on the new statutory provisions demonstrates the Court’s desire to
take an approach supposedly based on ‘common sense’ and on the idea that trial judges
should have considerable leeway in determining admissibility. A study of the operation
of the provisions concluded that, ‘in practice, there appears to be widespread confidence
that the magistrates and juries are quite capable of handling the evidence appropriately.
This is particularly so in the majority of cases that involve propensity and in which the
magistrates and juries are said to be able to distinguish between the facts of a case and a
defendant’s record, where appropriate.’189 Such optimism notwithstanding, it is arguable
that the current approach of the Court of Appeal may not protect defendants sufficiently
and that gateway (d), at least, should be the subject of a thorough and authoritative con-
sideration by the Supreme Court.

Further Reading
H L Ho, ‘Similar Facts in Civil Cases’ (2006) 26 Oxford Journal of Legal Studies 131
R Munday, ‘What Constitutes a Good Character?’ [1997] Criminal Law Review 247
R Munday, ‘Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of
Evidence’ (2006) 10 International Journal of Evidence and Proof 81
M Redmayne, Character in the Criminal Trial (2015)
J R Spencer, Evidence of Bad Character (2nd ed 2009)
J R Spencer, ‘Evidence of Bad Character—Where We Are Today’ [2014] 5 Archbold Review 5
J R Spencer, ‘Evidence of Bad Character—Where We Are Today [Part 2]’ [2014] 7 Archbold
Review 6

189  Morgan Harris Burrows LLP, Research into the Impact of Bad Character Provisions on the Courts

(Ministry of Justice Research Series 5/09) (2009) 36.

11
Hearsay Evidence

1  The Hearsay Debate
Hearsay evidence is evidence of an out-of-court statement that is being adduced in court
as evidence of a matter stated in the statement. The common law traditionally recognized
a rule against hearsay. Thus hearsay evidence was inadmissible unless it fell under an
exception to the rule. As will be explained in Sections 2 and 4 respectively, the position of
hearsay evidence in civil proceedings is now governed by the Civil Evidence Act 1995 and
in criminal proceedings by the Criminal Justice Act 2003.
The perceived unreliability of hearsay evidence constitutes the main justification for
recognizing a rule against hearsay:
[Hearsay evidence] is not the best evidence and it is not delivered on oath. The truthful-
ness and accuracy of the person whose words are spoken to by another witness cannot
be tested by cross-examination, and the light which his demeanour would throw on his
testimony is lost.1
Any statement may be unreliable because of defects in the perception, memory, sincerity,
or ability to narrate clearly, of the maker of the statement. Suppose that a witness, W, states
in his or her testimony that ‘The car I saw driving away was red’. This statement may be
unreliable because (1) W may have perceived the car to be red when it was in reality of
some other colour; (2) W may have genuinely forgotten that the car was of some other
colour; (3) W may be lying; or (4) W may be trying to say that the car was of some other
colour, but be lacking in the ability to narrate this clearly. In this situation, because the
statement has been made in court by the person who witnessed the event, it will have been
possible to observe his or her demeanour at the time of making the statement. Further, the
statement is likely to have been a sworn statement. Finally, it would be possible to subject
the witness to ‘contemporaneous’ cross-examination in relation to the statement. Such
cross-examination would, it is said, assist in exposing any defects in the witness’s percep-
tion, memory, sincerity, or clarity of narration. Suppose, however, that the situation is one
in which W is reporting an out-of-court statement: ‘X said that the car she saw driving
away was red.’ In such a situation, cross-examination of W would be of limited efficacy in
exposing possible defects in the perception, memory, sincerity, or ability to narrate clearly,
of X. It is for this reason, it is said, that a rule against hearsay should be recognized.2

1  Teper v R [1952] AC 480, 486 per Lord Normand.

2  Excellent aids to understanding the reliability rationale for the hearsay rule are provided by L H Tribe,
‘Triangulating Hearsay’ (1974) 87 Harvard Law Review 957 and M H Graham, ‘“Stickperson Hearsay”:
A Simplified Approach to Understanding the Rule against Hearsay’ [1982] University of Illinois Law Review 887.
The He ar say Debate 281

These arguments are, however, far from insurmountable, for the following reasons:
• As was discussed in greater detail in Chapter 3, the extent to which observation of a
witness’s demeanour actually provides a good indication of the reliability of his or
her testimony is a matter of considerable speculation.
• It is uncertain whether, in modern times, the taking of an oath (or the making of a
solemn affirmation) necessarily guarantees the reliability of testimony.
• The utility of contemporaneous cross-examination in ensuring the reliability of evi-
dence is also uncertain. Cross-examination may well be of little use in exposing
insincerity,3 and it is also possible that the efficacy of cross-examination in exposing
faulty perception may not be as high as may be assumed.4 Additionally, it should be
noted that suggesting facts to a witness in cross-examination may actually distort,
rather than assist, his or her memory.5
• For what it is worth,6 and despite evidence to the contrary,7 there is empirical evi-
dence suggesting that the assumption that juries are incapable of assessing the reli-
ability of hearsay evidence competently may well be questionable.8 In any event,
it must be remembered that, ‘although the jury retains a powerful symbolic influ-
ence in criminal proceedings, its role has been increasingly curtailed by legislative
changes, with the result that magistrates’ trials are increasingly the norm rather
than judge and jury trials’.9
Additionally, the hearsay rule as applied to prosecution evidence in criminal proceedings
may be justified by reference to considerations of extrinsic policy.10 It may be argued that
a legal system where, for example, observers of events testify directly to what they saw

3
 T Finman, ‘Implied Assertions as Hearsay:  Some Criticisms of the Uniform Rules of Evidence’
(1962) 14 Stanford Law Review 682, 690; R C Park, ‘A Subject Matter Approach to Hearsay Reform’ (1987)
86 Michigan Law Review 51, 96; E Swift, ‘A Foundation Fact Approach to Hearsay’ (1987) 75 California
Law Review 1339, 1357 n 50. See also J Allan, ‘The Working and Rationale of the Hearsay Rule and the
Implications of Modern Psychological Knowledge’ (1991) 44 Current Legal Problems 217.
4
 E A  Scallen, ‘Constitutional Dimensions of Hearsay Reform:  Toward a Three-Dimensional
Confrontation Clause’ (1992) 76 Minnesota Law Review 623, 627 n 15.
5
 Australian Law Reform Commission, Evidence (Vol 1) (Report No 26:  Interim) (1985) [663];
Scottish Law Commission (Scot Law Com No 149), Evidence: Report on Hearsay Evidence in Criminal
Proceedings (1995) [3.14]. Cf C Baksi, ‘Call for Witness Recall Education’, Law Society’s Gazette, 17 July
2008 (online).
6  The limitations of relying on simulated trials and mock juries are obvious: see C Tapper, ‘Hearsay in

Criminal Cases: An Overview of Law Commission Report No 245’ [1997] Criminal Law Review 771, 773.
7 For discussions of empirical evidence concerning the hearsay rule see generally R C Park,

‘Empirical Evaluation of the Hearsay Rule’ in P Mirfield and R Smith (eds), Essays for Colin Tapper
(2003); R C Park, ‘Visions of Applying the Scientific Method to the Hearsay Rule’ [2003] Michigan
State Law Review 1149.
8  M B Kovera, R C Park, and S D Penrod, ‘Jurors’ Perceptions of Eyewitness and Hearsay Evidence’

(1992) 76 Minnesota Law Review 703; S Landsman and R F Rakos, ‘Research Essay:  A  Preliminary
Empirical Enquiry Concerning the Prohibition of Hearsay Evidence in American Courts’ (1991) 15 Law
and Psychology Review 65; P Miene, R C Park, and E Borgida, ‘Juror Decision Making and the Evaluation
of Hearsay Evidence’ (1992) 76 Minnesota Law Review 683; R F Rakos and S Landsman, ‘Researching
the Hearsay Rule:  Emerging Findings, General Issues, and Future Directions’ (1992) 76 Minnesota Law
Review 655. See also R D Friedman, ‘Thoughts from across the Water on Hearsay and Confrontation’ [1998]
Criminal Law Review 697, 701.
9  J D Jackson, ‘Hearsay: The Sacred Cow that Won’t Be Slaughtered?’ (1998) 2 International Journal of

Evidence and Proof 166, 179.

10 For a much fuller discussion, see A  L-T Choo, Hearsay and Confrontation in Criminal Trials

(1996) 37–42.
282
He ar say E vidence

would be perceived as procedurally fairer than one where hearsay evidence is adduced.
Further, the hearsay rule may be regarded as protecting the value of individual dignity
in criminal proceedings. Unlike its civil counterpart, a criminal trial has a special moral
dimension, with the weight of the State ranged against an individual, whose conviction
and punishment are being sought. An important feature of criminal justice is, therefore,
the notion that human dignity must be respected when the power of the State is ranged
against an individual, as in a criminal prosecution.11 The ability of an accused person to
confront and cross-examine the maker of a statement against him or her, and not just
a person reporting the statement, is consistent with the right of accused persons to be
treated with dignity: ‘The idea that one who accuses another of wrong ought to do so in
a forum where he assumes the consequences of his statement has sufficient power that
no amount of cynical sneering about the utility of the oath, incidence of perjury pros-
ecutions, or the value of cross-examination will suffice to overcome it as an important
symbol of fairness.’12

2  Hearsay Evidence in Civil Proceedings

The admissibility of hearsay evidence in civil proceedings is now governed by the Civil
Evidence Act 1995,13 the effect of which is as follows.

2.1  The General Principle

The general principle, laid down by section 1, is that the hearsay rule has no application in
civil proceedings. In other words, hearsay evidence, first-hand or otherwise, is admissible
in civil proceedings.14 There are, however, a number of conditions to be satisfied and other
points to be noted:
(a)  Any party proposing to adduce hearsay evidence is to give such notice of that fact
to all other parties as is reasonable and practicable in the circumstances for the purpose

11
  See generally H Gross, A Theory of Criminal Justice (1979) 32–3; P Stein and J Shand, Legal Values in
Western Society (1974) 130 ff.
12  K W Graham Jr, ‘The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another

One’ (1972) 8 Criminal Law Bulletin 99, 133.

13  See generally D Barnett, ‘Civil Evidence Act’ (1997) 147 New Law Journal 701; ‘The Civil Evidence

Act 1995’ (1996) 160 Justice of the Peace 82; I Grainger, ‘Hearsay Evidence Admissible’ (1996) 140
Solicitors’ Journal 536; I Grainger, ‘New Rules on Hearsay Notices’ (1997) 141 Solicitors’ Journal 112; A
Hogan, ‘The Civil Evidence Act 1995’ (1997) 147 New Law Journal 226; R Munday, ‘The Civil Evidence
Act 1995 and the Diverging Paths of Civil and Criminal Hearsay Rules’ [1997] Cambridge Law Journal
272; D O’Brien, ‘The Rule Against Hearsay RIP’ (1996) 146 New Law Journal 153; J Peysner, ‘Hearsay
is Dead! Long Live Hearsay!’ (1998) 2 International Journal of Evidence and Proof 232; S E Salako,
‘The Hearsay Rule and the Civil Evidence Act 1995:  Where Are We now?’ (2000) 19 Civil Justice
Quarterly 371.
14  The proceedings for the making of an anti-social behaviour order under the Crime and Disorder Act

1998 have been held to be civil proceedings:  R (McCann) v Manchester Crown Court [2002] UKHL 39,
[2002] 3 WLR 1313. See generally C Bakalis, ‘Anti-Social Behaviour Orders—Criminal Penalties or Civil
Injunctions?’ [2003] Cambridge Law Journal 583; S Macdonald, ‘The Nature of the Anti-Social Behaviour
Order—R (McCann & Others) v Crown Court at Manchester’ (2003) 66 Modern Law Review 630; P Tain,
‘Civil or Criminal?’ (2002) 146 Solicitors’ Journal 1037. See also R v W [2006] EWCA Crim 686, [2007] 1
WLR 339. Proceedings for the making of a closure order under s 2 of the Anti-social Behaviour Act 2003
are also civil proceedings: R (Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin),
[2007] 1 WLR 1272.
He ar say E vidence in Civil Proceedings 283

of enabling them to deal with any matters arising from the evidence being hearsay.15
Detailed provision on the duty to give notice of intention to rely on hearsay evidence
is made in rules 33.2 and 33.3 of the Civil Procedure Rules. Failure to give notice does
not affect the admissibility of the evidence, but may be taken into account by the court
(i) in considering the exercise of its powers with respect to the course of proceedings and
costs, and (ii) as a matter adversely affecting the weight to be accorded to the evidence.16
The requirement to give notice may, however, be waived by any party to whom it is to be
given.17
(b)  Where hearsay evidence is adduced and the maker of the statement is not called
as a witness, provision is made for any other party to the proceedings, with the leave of
the court, to call that person as a witness in order to cross-examine him or her on the
statement.18
(c) In assessing the weight to be accorded to hearsay evidence, the court is to have
regard to any circumstances from which any inference can reasonably be drawn about
the reliability or otherwise of the evidence. In particular, regard is to be had to the fol-
lowing factors:
• whether it would have been reasonable and practicable for the party adducing the
evidence to have produced the maker of the original statement as a witness;
• whether the original statement was made contemporaneously with the occurrence
or existence of the matters stated in the statement;
• whether the evidence involved multiple hearsay;
• whether any person involved had any motive to conceal or misrepresent matters;
• whether the original statement was an edited account, or was made in collaboration
with another or for a particular purpose;
• whether the circumstances in which the hearsay evidence is adduced are such as to
suggest an attempt to prevent proper evaluation of its weight.19
(d) Section 5(1) provides:
Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is
shown to consist of, or to be proved by means of, a statement made by a person who at the
time he made the statement was not competent as a witness.

15  S 2(1). This requirement has been criticized by J Peysner, ‘Hearsay is Dead! Long Live Hearsay!’ (1998)

2 International Journal of Evidence and Proof 232.

16 S 2(4). 17 S 2(3).
18  S 3.  See also rule 33.4 of the Civil Procedure Rules and, generally, I R Scott, ‘Cross-Examination

and Witness Statements’ (2003) 22 Civil Justice Quarterly 307. S 3 and rule 33.4 are discussed in Cottrell v
General Cologne Re UK Ltd [2004] EWHC 2402 (Comm).
19  S 4. In R (Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin), [2007] 1 WLR

1272 at [30], the Administrative Court counselled against giving undue weight to hearsay evidence in
proceedings for the making of a closure order under s 2 of the Anti-social Behaviour Act 2003: ‘defend-
ants to an application for a closure order may risk being dispossessed from their home for up to six
months . . . The willingness of a civil court to admit hearsay evidence carries with it inherent dangers.
It is much more difficult for a court to assess the truth of what they are being told if the original maker
of the statement does not attend to be cross-examined. More attention should be paid by claimants to
the need to state by convincing direct evidence why it is not reasonable and practicable to produce the
original maker of the statement as a witness. Justices should have these matters well in mind. . . . Credible
direct evidence of a defendant in an application for a closure order may well carry greater weight than
uncross-examined hearsay from an anonymous witness or several anonymous witnesses.’ See generally
C Cuddihee, ‘Fighting Back’ (2007) 157 New Law Journal 880; R Denford, ‘Fighting Back’ (2007) 157 New
Law Journal 1184.
284
He ar say E vidence

For this purpose ‘not competent as a witness’ means suffering from such mental or
physical infirmity, or lack of understanding, as would render a person incompetent as a
witness in civil proceedings; but a child shall be treated as competent as a witness if he
satisfies the requirements of section 96(2)(a) and (b) of the Children Act 1989 (conditions
for reception of unsworn evidence of child).20
(e)  Provision is also made, in section 5(2), for the admissibility of evidence attacking or
supporting the credibility of the maker of a statement not called as a witness, provided that
such evidence would be admissible if he or she were called as a witness.

2.2  Specific Situations

The general principle, we have seen, is that all hearsay evidence is admissible in civil
proceedings, provided that the general provisions of the Civil Evidence Act 1995 are
satisfied. In addition, however, there are particular situations to be considered.21
(a)  A number of common law exceptions to the hearsay rule are specifically preserved
by the Civil Evidence Act 1995.22 In relation to each of these exceptions, all that must be
determined is whether the requirements laid down at common law for the application of
the exception are satisfied. The general provisions of the Act (for example, that requir-
ing notice of intention to adduce hearsay evidence to be given) do not apply in relation
to these preserved common law exceptions. The preserved common law exceptions are:
• The exception which renders published works dealing with matters of a public nature
(for example, histories, scientific works, dictionaries, and maps) admissible as evi-
dence of facts of a public nature stated in them.
• The exception which renders public documents (for example, public registers and
returns made under public authority with respect to matters of public interest)
admissible as evidence of facts stated in them.
• The exception which renders records (for example, the records of certain courts,
treaties, Crown grants, pardons, and commissions) admissible as evidence of facts
stated in them.
• The exception which renders evidence of a person’s reputation admissible for the
purpose of proving his or her good or bad character.
• The exception which renders evidence of reputation or family tradition admissible
for the purpose of proving or disproving pedigree or the existence of a marriage;23 or
for the purpose of proving or disproving the existence of any public or general right,
or of identifying any person or thing.
(b)  The Civil Evidence Act 1995 provides that the following provisions remain in
force, and are unaffected by the general provisions of the Act:
• Documentary Evidence Act 1868, section 2 (mode of proving certain official
documents);
• Documentary Evidence Act 1882, section 2 (documents printed under the superin-
tendence of the Stationery Office);

20 Italics added.
21  For more detail see H M Malek et al (eds), Phipson on Evidence (18th ed 2013) Ch 29.
22 S 7.
23  By virtue of s 84(5) of the Civil Partnership Act 2004 this ‘is to be treated as applying in an equivalent

way for the purpose of proving or disproving the existence of a civil partnership’.
Other Proceedings in which the He ar say Rule Is Inapplic able 285

• Evidence (Colonial Statutes) Act 1907, section 1 (proof of statutes of certain

legislatures);
• Evidence (Foreign, Dominion and Colonial Documents) Act 1933, section 1 (proof
and effect of registers and official certificates of certain countries);
• Oaths and Evidence (Overseas Authorities and Countries) Act 1963, section 5 (pro-
vision in respect of public registers of other countries).24

3  Other Proceedings in which the Hearsay Rule

Is Inapplicable
There are a number of particular categories of proceedings in which the hearsay rule
has no application. For example, Article 2 of the Children (Admissibility of Hearsay
Evidence) Order 1993 provides:
In—
(a) civil proceedings before the High Court or a county court; and
(b)
(i) family proceedings, and
(ii) civil proceedings under the Child Support Act 1991 in a magistrates’ court,
evidence given in connection with the upbringing, maintenance or welfare of a child shall
be admissible notwithstanding any rule of law relating to hearsay.25
Also noteworthy is the principle that, where hearsay evidence has legitimately been
taken into account in reaching an administrative decision, a court reviewing the deci-
sion is also entitled to take that evidence into account, and is not confined to consider-
ing strictly admissible evidence. The court could make appropriate allowance for the
fact that the evidence is hearsay in the weight it attaches to that evidence. 26 Considered
in McCool v Rushcliffe BC27 was the provision in section 51(1) of the Local Government
(Miscellaneous Provisions) Act 1976 that ‘a district council shall, on the receipt of an
application from any person for the grant to that person of a licence to drive private
hire vehicles, grant to that person a driver’s licence: Provided that a district council
shall not grant a licence (a)  unless they are satisfied that the applicant is a fit and
proper person to hold a driver’s licence’. The Divisional Court held that, in deter-
mining whether a person was a fit and proper person, within the meaning of section
51(1), to hold a licence to drive a private hire vehicle, a district council and (on appeal)
a magistrates’ court were entitled to take hearsay evidence into account. The Court
noted that,
in reaching their respective decisions, the borough council and the justices were enti-
tled to rely on any evidential material which might reasonably and properly influence
the making of a responsible judgment in good faith on the question in issue. Some
evidence such as gossip, speculation and unsubstantiated innuendo would be rightly
disregarded. Other evidence, even if hearsay, might by its source, nature and inherent

24 S 14(3). 25  See, eg, R v Stratford Youth Court, ex p S [1998] 1 WLR 1758.

26  R v Home Secretary, ex p Rahman [1997] 3 WLR 990. 27  [1998] 3 All ER 889.
286
He ar say E vidence

probability carry a greater degree of credibility. All would depend on the particular facts
and circumstances.28

4  Criminal Proceedings
The issue of the admissibility of hearsay evidence in criminal proceedings in England
and Wales29 should be viewed in conjunction with the discussions in Chapter 13 of the
increasing concern about difficulties encountered by witnesses in the criminal justice
process. These may range from witness intimidation30 to insensitive treatment within
the courtroom. The hearsay provisions31 of the Criminal Justice Act 2003,32 which came
into force on 4 April 2005,33 are largely modelled on the recommendations of the Law
Commission.34 The Criminal Justice Act 2003 maintains a general rule whereby ‘a state-
ment not made in oral evidence in the proceedings’ is inadmissible ‘as evidence of any
matter stated’.35 ‘A statement is any representation of fact or opinion made by a person by
whatever means; and it includes a representation made in a sketch, photofit or other picto-
rial form.’36 The exclusionary rule applies only if ‘the purpose, or one of the purposes, of
the person making the statement appears to the court to have been (a) to cause another
person to believe the matter, or (b) to cause another person to act or a machine to operate
on the basis that the matter is as stated’.37 The effect of this is that only purposive assertions
in out-of-court statements are caught by the hearsay rule.38 At common law, so-called
implied assertions were caught by the hearsay rule. Thus, in a situation where there was
no purposive assertion (either by words or by conduct) of a particular matter, but it was
possible to infer an assertion of that matter from words or conduct, evidence of the words
or conduct was inadmissible under the hearsay rule to establish the relevant matter in the
same way that it would have been had the assertion been purposive. In R v Kearley39 the
question arose whether evidence that a number of telephone callers had requested the

28
  [1998] 3 All ER 889, 893.
29
  Cf the position in Scotland:  P Duff, ‘Hearsay Issues:  A  Scottish Perspective’ [2005] Criminal Law
Review 525.
30
  See, eg, D Kennedy and F Gibb, ‘Murder Suspects Go Free as Cases of Witness Intimidation Double’,
The Times, 5 Apr 2008, 4.
31  The Court of Appeal has confirmed that these provisions apply in proceedings held under s 4A of the

Criminal Procedure (Insanity) Act 1964, ‘whether on the basis that [the provisions] appl[y]‌directly to s 4A
proceedings as a matter of statutory interpretation, or whether on the basis that [they do] not but that the
court in such proceedings should adopt the same rules of evidence as would apply in criminal proceedings.
It is an arid question which of those analyses is to be preferred. We can see the force of the argument in
favour of the latter analysis, which avoids having to say that s 4A proceedings are criminal proceedings for
one purpose but are not criminal proceedings for another, but it is a point of purely intellectual interest
which it is unnecessary for us formally to decide for present purposes’: R v Chal [2007] EWCA Crim 2647,
[2008] 1 Cr App R 18 at [34]. By contrast, ‘the CJA 2003 hearsay regime cannot be directly or strictly appli-
cable to confiscation proceedings’: R v Clipston [2011] EWCA Crim 446, [2011] 2 Cr App R (S) 101 at [60].
32  See generally J R Spencer, Hearsay Evidence in Criminal Proceedings (2nd ed 2014).
33  See also R v H (P G) [2005] EWCA Crim 2083, [2006] 1 Cr App R 4.
34  Law Commission (Law Com No 245), Evidence in Criminal Proceedings: Hearsay and Related Topics

(1997).
35  S 114(1). 36  S 115(2).
37  S 115(3). See generally G Durston, ‘Implied Assertions and Hearsay’ (2004) 154 New Law Journal 528.
38  Contra S Uglow, ‘Section 115(3) of the Criminal Justice Act 2003: How not to Overturn Kearley’ [2005]

5 Archbold News 6.
39  [1992] 2 AC 228. See also R v O’Connell [2003] EWCA Crim 502. See generally G Taylor, ‘Two English

Hearsay Heresies’ (2005) 9 International Journal of Evidence and Proof 110.

Criminal Proceedings 287

defendant to supply them with drugs was admissible to prove that the defendant was a
supplier of drugs. In holding the evidence to be inadmissible, the majority of the House of
Lords reasoned as follows. The making of the requests for drugs indicated that the callers
believed Kearley to be a drug supplier. Although the callers did not externalize this belief
expressly (by, for example, saying over the telephone, ‘You, Kearley, are a drug supplier’),
they did so impliedly through their requests. The requests were relevant only inasmuch as
they contained implied assertions that Kearley was a drug supplier, and, because express
assertions to that effect would have been subject to the hearsay rule, so too should be the
implied assertions.
The Court of Appeal in R v Singh confirmed that Parliament had indeed achieved its
purpose of overturning the effect of Kearley: the 2003 Act ‘create[s]‌ . . . a new rule against
hearsay which does not extend to implied assertions. What was said by the callers in R v
Kearley . . . would now be admissible as direct evidence of the fact that there was a ready
market for the supply of drugs from the premises, from which could be inferred an inten-
tion by an occupier to supply drugs. The view of the majority in R v Kearley, in relation to
hearsay, has been set aside by the Act.’40
The rationale for confining the hearsay rule to purposive assertions was explained suc-
cinctly in a US case, US v Long:
One of the principal goals of the hearsay rule is to exclude declarations when their verac-
ity cannot be tested through cross-examination. When a declarant does not intend
to communicate anything, however, his sincerity is not in question and the need for
cross-examination is sharply diminished. Thus, an unintentional message is presump-
tively more reliable.41
In other words, absence of purpose to assert or communicate the fact that is sought to be
established is considered to negate the danger of insincerity. This approach may be sub-
jected to the criticism that, inasmuch as it is designed to weed out unreliable hearsay, it
does so by addressing only one hearsay danger, insincerity, to the exclusion of the dangers
of faulty perception, erroneous memory, and lack of clarity in narration.42
The general prohibition against hearsay evidence in the Criminal Justice Act 2003 is
subject to important exceptions. We shall now consider the four categories of exception
that, subject to the discussion in Section 4.4, apply where first-hand hearsay evidence is at
issue. This is where the maker of the out-of-court statement actually had personal knowl-
edge (first-hand knowledge) of the matter stated in his or her statement. Such a situation
may arise where, for example, the colour of a car is at issue, and it is proposed that an
in-court witness testify that ‘X told me that the car that X saw was red’. Where multiple
hearsay is at issue (for example, testimony by an in-court witness that ‘X told me that Y
told her that the car that Y saw was red’ or that ‘X told me that Y told her that the car that
Z saw was red’), a different set of principles applies, as will be explained later.

40  [2006] EWCA Crim 660, [2006] 1 WLR 1564 at [14]. Leave to appeal to the House of Lords was

refused: [2006] 1 WLR 2206. See also R v Twist [2011] EWCA Crim 1143, [2011] 3 All ER 1055 (on which see
generally M Hirst, ‘Hearsay, Confessions and Mobile Telephones’ (2011) 75 Journal of Criminal Law 482; P
Mirfield, ‘A Final Farewell to Kearley’ (2012) 128 Law Quarterly Review 331; R Mobbs, ‘Hearsay Evidence’
[2011] 3 Criminal Bar Quarterly 8). Contra R v Baldree 2013 SCC 35, [2013] 2 SCR 520 at [48]: ‘there is no
principled reason, in determining their admissibility, to distinguish between express and implied assertions
adduced for the truth of their contents’. See generally C Hunt and M Rankin, ‘Hearsay by Implication: R v
Baldree’ (2014) 18 International Journal of Evidence and Proof 181.
41  905 F 2d 1572, 1580 (DC Cir 1990).
42  See also D Birch, ‘Criminal Justice Act 2003: (4) Hearsay—Same Old Story, Same Old Song?’ [2004]

Criminal Law Review 556, 564–6.

288
He ar say E vidence

The Criminal Justice Act 2003 provides, subject to the special principles governing
multiple hearsay to be discussed in Section 4.4, that hearsay evidence is admissible where
one of the following four categories of exception applies:
• any statutory exception makes it admissible (section 114(1)(a));
• any common law exception preserved by the Act makes it admissible (section 114(1)(b));
• ‘all parties to the proceedings agree to it being admissible’ (section 114(1)(c));
• ‘the court is satisfied that it is in the interests of justice for it to be admissible’ (section
114(1)(d)).
The third category being self-explanatory,43 the first, second, and fourth of these catego-
ries will now be considered in turn.

4.1  Statutory Exceptions in the Criminal Justice Act 2003

The Criminal Justice Act 2003 itself contains a number of specific statutory exceptions to
the hearsay rule.

4.1.1  Unavailability of Maker of Out-of-Court Statement

Broadly speaking, section 116 of the Act is aimed at securing the admissibility in evidence
of an out-of-court statement where its maker is unavailable to testify for one of a number
of specified reasons. Section 116 provides:
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement
would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the
court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental
condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably
practicable to secure his attendance;

43  Being of general application, it may have the effect of rendering s 9 of the Criminal Justice Act

1967 redundant. This provides for ‘a written statement by any person [to] be admissible as evidence to
the like extent as oral evidence to the like effect by that person’ if these conditions are satisfied: ‘(a) the
statement purports to be signed by the person who made it; (b) the statement contains a declaration
by that person to the effect that it is true to the best of his knowledge and belief and that he made the
statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully
stated in it anything which he knew to be false or did not believe to be true; (c) before the hearing at
which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the
party proposing to tender it, on each of the other parties to the proceedings; and (d) none of the other
parties or their solicitors, within seven days from the service of the copy of the statement, serves a notice
on the party so proposing objecting to the statement being tendered in evidence under this section’.
Conditions (c) and (d) ‘shall not apply if the parties agree before or during the hearing that the state-
ment shall be so tendered’.
Criminal Proceedings 289

(d) that the relevant person cannot be found although such steps as it is reasonably
practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give)
oral evidence in the proceedings, either at all or in connection with the subject
matter of the statement, and the court gives leave for the statement to be given in
evidence.
The unavailability of the maker of the out-of-court statement for one of the five reasons
specified in section 116(2) must not have been brought about by the party seeking to give
the statement in evidence in order to prevent him or her from giving oral evidence in the
proceedings.44 For the purposes of section 116(2)(e), ‘fear’ ‘is to be widely construed and
(for example) includes fear of the death or injury of another person or of financial loss’.45
Moreover, leave may be given under section 116(2)(e)
only if the court considers that the statement ought to be admitted in the interests of
justice, having regard (a) to the statement’s contents, (b) to any risk that its admission or
exclusion will result in unfairness to any party to the proceedings (and in particular to
how difficult it will be to challenge the statement if the relevant person does not give oral
evidence), (c) in appropriate cases, to the fact that a direction under section 19 of the Youth
Justice and Criminal Evidence Act 1999 (c 23) (special measures for the giving of evidence
by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any
other relevant circumstances.46
In R v Adams the Court of Appeal emphasized that taking half-hearted steps will not be
tantamount to taking ‘such steps as it is reasonably practicable to take’ for the purposes
of subsection (2)(d). At Adams’ trial on Monday 15 January 2007, an important potential
prosecution witness, C, was not at court and nobody knew where he was. It transpired
that C had confirmed in September 2006 that he would be able to attend the trial on 15
January 2007. Nothing then happened until Friday 12 January 2007, when a voicemail
reminder about the trial date was left on C’s mobile telephone. The trial judge held that a
witness statement that C had made was admissible under section 116(2)(d), but the Court
of Appeal disagreed:
Leaving contact with a witness such as this until the last working day before the trial is not
good enough and it certainly is not such steps as it is reasonably practicable to take to find
him. In addition to that, once the message was not known to have been received on the
Friday and there was doubt about it, . . . reasonably practicable steps which ought to have
been taken included a visit to his address and/or to his place of work or agency, or at least
contact with those places, perhaps by telephone.47

44  S 116(5). ‘Although the reference to “the proceedings” in subsection (5)  must refer to the proceed-

ings in which it is sought to adduce the evidence, we see no reason to interpret the subsection as limited
to steps taken after the commencement of the proceedings. If, as we think, the purpose of the provision is
to prevent the person who is responsible for the absence of the witness from adducing his evidence in the
form of hearsay, it is of no relevance whether the proceedings had or had not been started at the time when
the relevant acts were performed. The only question of importance is whether the acts were done in order
to prevent the attendance of the witness at the proceedings’: R v Rowley [2012] EWCA Crim 1434, [2013] 1
WLR 895 at [27].
45  S 116(3).
46  S 116(4). See generally G Durston, ‘Frightened Witnesses and the Criminal Justice Act 2003’ (2004)

154 New Law Journal 1626.

47  R v Adams [2007] EWCA Crim 3025, [2008] 1 Cr App R 35, (2007) 172 JP 113 at [13]. The Court of

Appeal, however, held the statement to be admissible in the interests of justice under s 114(1)(d).
290
He ar say E vidence

While, in considering subsection (2)(e), ‘judges must be astute not to skew a fair trial by
a too ready acceptance of assertions of fear since it is all too easy for witnesses to avoid
the inconvenience and anxiety of a trial by saying they do not want to come’,48 ‘courts are
ill-advised to seek to test the basis of fear by calling witnesses before them, since that may
undermine the very thing that s 116 was designed to avoid’.49
In R v Musone,50 which concerned the murder of a prisoner, the prosecution sought to
adduce evidence from a fellow prisoner, Brown, that the deceased had walked towards
him with his T-shirt stained with blood. Brown asked the deceased, ‘What’s happened,
mate?’, to which the deceased replied, ‘Musone’s just stabbed me’. This evidence was held
to be admissible under section 116.

4.1.2  Business and Other Documents

Section 117 of the Act does not, unlike section 116, alter previous hearsay doctrine in any
radical way. Essentially a revised version of an exception that was previously contained in
section 24 of the Criminal Justice Act 1988, section 117 provides:
(1) In criminal proceedings a statement contained in a document is admissible as evi-
dence of any matter stated if—
(a) oral evidence given in the proceedings would be admissible as evidence of that
matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5)  are satisfied, in a case where subsection
(4) requires them to be.
(2) The requirements of this subsection are satisfied if—
(a) the document or the part containing the statement was created or received by a
person in the course of a trade, business, profession or other occupation, or as the
holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the rel-
evant person) had or may reasonably be supposed to have had personal knowl-
edge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the rel-
evant person to the person mentioned in paragraph (a) received the informa-
tion in the course of a trade, business, profession or other occupation, or as the
holder of a paid or unpaid office.
(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same
person.
(4) The additional requirements of subsection (5) must be satisfied if the statement—
(a) was prepared for the purposes of pending or contemplated criminal proceedings,
or for a criminal investigation, but
(b) was not obtained pursuant to a request under section 7 of the Crime (International
Co-operation) Act 2003 (c 32) or an order under paragraph 6 of Schedule 13 to
the Criminal Justice Act 1988 (c 33) (which relate to overseas evidence).

48  R v Davies [2006] EWCA Crim 2643, [2007] 2 All ER 1070 at [15].
49  R v Davies [2006] EWCA Crim 2643, [2007] 2 All ER 1070 at [14].
50  [2007] EWCA Crim 1237, [2007] 1 WLR 2467.
Criminal Proceedings 291

(5) The requirements of this subsection are satisfied if—

(a) any of the five conditions mentioned in section 116(2) is satisfied (absence of rel-
evant person etc), or
(b) 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 and all other circumstances).
(6) A statement is not admissible under this section if the court makes a direction to that
effect under subsection (7).
(7) The court may make a direction under this subsection if satisfied that the statement’s
reliability as evidence for the purpose for which it is tendered is doubtful in view of—
(a) its contents,
(b) the source of the information contained in it,
(c) the way in which or the circumstances in which the information was supplied or
received, or
(d) the way in which or the circumstances in which the document concerned was
created or received.
Maher v DPP provides a clear illustration of judicial consideration of section 117. Maher
was alleged to have reversed her car into a parked car belonging to Mr Huddlestone in a
supermarket car park, got out to inspect the damage, and then driven away. Mrs Dennis,
who had allegedly witnessed the incident, left a note on Mr Huddlestone’s windscreen
purporting to provide the registration number of the car that had allegedly damaged his.
When Mr Huddlestone and his girlfriend Miss McDonough returned to his car, Miss
McDonough telephoned the police and read the registration number to a police clerk, who
recorded it in the Police Incident Log. Maher admitted to being the driver of a car bearing
the relevant registration number, and to being in the car and the car park at the relevant
time, but denied involvement in any collision. The piece of paper on which Mrs Dennis
wrote her note was no longer available. Scott Baker LJ, speaking for the Administrative
Court, held that the Police Incident Log was inadmissible in evidence under section 117
to establish the identity of the offending car, because section 117(2)(c) was not satisfied:
Subsection (2)(b) directs the reader to the person who supplied the information contained
in the statement. That is how the relevant person is defined. The statement is the registra-
tion number of the offending vehicle. The document in which it is contained is the Police
Incident Log. Who supplied the information about the registration number? Answer: in
my judgment, Mrs Dennis. What happened thereafter was transmission of the supplied
information via Miss McDonough and the police clerk to the police log. My view is for-
tified by subs (2)(c) which clearly envisages the possibility of the information passing
through several individuals from the supplier to its ultimate destination, in this case the
police log.
Whilst the requirements of s 117(2)(b) are met, in that Mrs Dennis plainly had personal
knowledge of the number of the offending vehicle when she recorded it, an insuperable
difficulty arises with s 117(2)(c) which provides that each individual in the line along which
the information was transmitted must have received it in the course of a trade, business,
et cetera. Miss McDonough did not. . . . the position would have been entirely different if
the information had been given not to Miss McDonough but to the car park attendant.51

51  [2006] EWHC 1271 (Admin), (2006) 170 JP 441 at [14]–[15]. As will be explained in Section 4.4, how-

ever, the Log was held to be admissible in evidence under s 121(1)(c). See also Wellington v DPP [2007]
292
He ar say E vidence

4.1.3  Previous Inconsistent Statements

In certain circumstances the law permits a witness’s out-of-court statement that is
inconsistent with his or her in-court testimony52 to be used to discredit the witness’s
testimony.53 Equally, an out-of-court statement that is inconsistent with a hearsay state-
ment that is admitted in evidence may be used to ‘discredit’ the hearsay statement.54 The
general effect of section 119 is that all such previous inconsistent statements may not
only be used for the purposes of ‘discrediting’, but also become evidence of any matters
stated in them.55

4.1.4  Previous Consistent Statements

Section 120 prescribes five situations in which a previous consistent statement 56 will
be admissible as evidence of the truth of its contents. These situations are as follows:
• The ‘previous statement by the witness is admitted as evidence to rebut a suggestion
that his oral evidence has been fabricated’.57
• The statement is one ‘made by the witness in a document (a) which is used by him
to refresh his memory while giving evidence, (b) on which he is cross-examined,
and (c) which as a consequence is received in evidence in the proceedings’. 58
• ‘The statement identifies or describes a person, object or place’,59 and ‘while giving
evidence the witness indicates that to the best of his belief he made the statement,
and that to the best of his belief it states the truth’.60
• ‘The statement was made by the witness when the matters stated were fresh
in his memory but he does not remember them, and cannot reasonably be
expected to remember them, well enough to give oral evidence of them in the
proceedings’, 61 and ‘while giving evidence the witness indicates that to the best
of his belief he made the statement, and that to the best of his belief it states the
truth’. 62
• ‘The statement consists of a complaint made by the witness (whether to a person in
authority or not) about conduct which would, if proved, constitute the offence or
part of the offence’,63 ‘the complaint was not made as a result of a threat or a prom-
ise’,64 ‘before the statement is adduced the witness gives oral evidence in connection
with its subject matter’,65 and ‘while giving evidence the witness indicates that to
the best of his belief he made the statement, and that to the best of his belief it states
the truth’.66
This approach may be criticized for being unduly narrow. Of course it is true that
there appears to be little necessity for the admissibility in evidence for their truth of

EWHC 1061 (Admin), (2007) 171 JP 497: entry on a Police National Computer print-out held to be admis-
sible in evidence under s 117. Cf R v Humphris [2005] EWCA Crim 2030, (2005) 169 JP 441.
52 See generally G Durston, ‘Previous (In)consistent Statements after the Criminal Justice Act

2003’ [2005] Criminal Law Review 206; A Samuels, ‘Inconsistent Statements’ (2004) 168 Justice of the
Peace 873.
53  See Chapter 3. 54  Criminal Justice Act 2003, s 124(2)(c).
55  ‘The effect of s 119(1) is clear:  it renders previous inconsistent statements made by a witness evi-

dence’: R v Billingham [2009] EWCA Crim 19, [2009] 2 Cr App R 20 at [60].

56 See Chapter  3 and, generally, G Durston, ‘Previous (In)consistent Statements after the Criminal

Justice Act 2003’ [2005] Criminal Law Review 206.

57  S 120(2). 58  S 120(3). 59  S 120(5). 60  S 120(4)(b). 61  S 120(6).
62  S 120(4)(b). 63  S 120(7)(c). 64  S 120(7)(e). 65  S 120(7)(f).
66  S 120(4)(b).
Criminal Proceedings 293

statements of witnesses which are, by definition, consistent with their present testi-
mony. However, evidence of statements about an event made by a witness at an earl­
ier time (and hence closer to the time of the event) may, if it exists, be just the type of
evidence which a jury would expect to hear in addition to statements about the same
event made in court. In an article about countering negative inferences associ-
ated with the absence of evidence,67 it has been argued that, when certain issues are
raised in jury trials, juries often develop expectations about the evidence which will
be adduced for their consideration. The failure of a party to satisfy these expectations
may result in negative (and often unfair) inferences being drawn against that party
by the jury.
Lord Justice Auld would have liked to see the introduction of a rather more radical
approach along the following lines:
• where a witness has made a prior statement, in written or recorded form, it should
be admissible as evidence of any matter stated in it of which his direct oral evidence
in the proceedings would be admissible provided that he authenticates it as his
statement;
• an integral part of the new rule should be that a defendant’s previous statement should
in principle be admissible whether it supports or damages his case and the fact that it
may appear to be self-serving should go only to weight; and
• the witness should be permitted, where appropriate, to adopt the statement in the wit-
ness box as his evidence in chief.68

4.2  Common Law Exceptions

A number of common law exceptions to the hearsay rule are specifically preserved by
section 118 of the Act. All other common law exceptions are abolished. Section 118(1)
provides a list and brief description of the common law exceptions preserved:
The following rules of law are preserved.
PUBLIC INFORMATION ETC

1 Any rule of law under which in criminal proceedings—

(a) published works dealing with matters of a public nature (such as histories, scien-
tific works, dictionaries and maps) are admissible as evidence of facts of a public
nature stated in them,
(b) public documents (such as public registers, and returns made under public
authority with respect to matters of public interest) are admissible as evidence of
facts stated in them,
(c) records (such as the records of certain courts, treaties, Crown grants, pardons and
commissions) are admissible as evidence of facts stated in them, or
(d) evidence relating to a person’s age or date or place of birth may be given by a per-
son without personal knowledge of the matter.

67  S A Saltzburg, ‘A Special Aspect of Relevance: Countering Negative Inferences Associated with the

Absence of Evidence’ (1978) 66 California Law Review 1011.

68  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 11 para 92,

accessible via http://www.criminal-courts-review.org.uk. See also D Birch, ‘Criminal Justice Act 2003: (4)
Hearsay—Same Old Story, Same Old Song?’ [2004] Criminal Law Review 556, 569–72.
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He ar say E vidence

REPUTATION AS TO CHARACTER

2 Any rule of law under which in criminal proceedings evidence of a person’s reputa-
tion is admissible for the purpose of proving his good or bad character.

NOTE

The rule is preserved only so far as it allows the court to treat such evidence as proving
the matter concerned.

REPUTATION OR FAMILY TRADITION

3 Any rule of law under which in criminal proceedings evidence of reputation or family
tradition is admissible for the purpose of proving or disproving—
(a) pedigree or the existence of a marriage,[69]
(b) the existence of any public or general right, or
(c) the identity of any person or thing.

NOTE

The rule is preserved only so far as it allows the court to treat such evidence as proving or
disproving the matter concerned.

RES GESTAE

4 Any rule of law under which in criminal proceedings a statement is admissible as

evidence of any matter stated if—
(a) the statement was made by a person so emotionally overpowered by an event that
the possibility of concoction or distortion can be disregarded,
(b) the statement accompanied an act which can be properly evaluated as evidence
only if considered in conjunction with the statement, or
(c) the statement relates to a physical sensation or a mental state (such as intention or
emotion).

CONFESSIONS ETC

5 Any rule of law relating to the admissibility of confessions or mixed statements in

criminal proceedings.

ADMISSIONS BY AGENTS ETC

6 Any rule of law under which in criminal proceedings—

(a) an admission made by an agent of a defendant is admissible against the defendant
as evidence of any matter stated, or
(b) a statement made by a person to whom a defendant refers a person for informa-
tion is admissible against the defendant as evidence of any matter stated.

69  By virtue of s 84(5) of the Civil Partnership Act 2004 this ‘is to be treated as applying in an equivalent

way for the purpose of proving or disproving the existence of a civil partnership’.
Criminal Proceedings 295

COMMON ENTERPRISE

7 Any rule of law under which in criminal proceedings a statement made by a party to
a common enterprise is admissible against another party to the enterprise as evidence
of any matter stated.

EXPERT EVIDENCE

8 Any rule of law under which in criminal proceedings an expert witness may draw on
the body of expertise relevant to his field.
It is desirable to make further comment on the following of these common law exceptions
set out in section 118(1) of the Act:

4.2.1  Res Gestae
Literally, the term res gestae means ‘the transaction’. In essence, evidence of facts may be
admissible as part of the res gestae if these facts are so closely connected in time, place, and
circumstances with some transaction which is at issue that they can be said to form a part
of that transaction. The main contexts in which hearsay statements may be admissible in
evidence as part of the res gestae, outlined in section 118(1), will now be examined briefly.

4.2.1.1  Spontaneous Statements

The law relating to the admissibility in evidence of spontaneous statements was authori-
tatively clarified by Lord Ackner in R v Andrews (Donald):
1. The primary question which the judge must ask himself is—can the possibility of con-
coction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the
particular statement was made, in order to satisfy himself that the event was so unu-
sual or startling or dramatic as to dominate the thoughts of the victim, so that his
utterance was an instinctive reaction to that event, thus giving no real opportunity for
reasoned reflection. In such a situation the judge would be entitled to conclude that
the involvement or the pressure of the event would exclude the possibility of concoc-
tion or distortion, providing that the statement was made in conditions of approxi-
mate but not exact contemporaneity.
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associ-
ated with the event which has excited the statement, that it can be fairly stated that
the mind of the declarant was still dominated by the event. Thus the judge must be
satisfied that the event, which provided the trigger mechanism for the statement, was
still operative. The fact that the statement was made in answer to a question is but one
factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate
to the possibility of concoction or distortion. . . .
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary
fallibility of human recollection is relied upon, this goes to the weight to be attached
to and not to the admissibility of the statement and is therefore a matter for the jury.
However, here again there may be special features that may give rise to the possibil-
ity of error. . . . In such circumstances the trial judge must consider whether he can
exclude the possibility of error. . . .
. . . Of course, having ruled the statement admissible the judge must . . . make it clear to the
jury that it is for them to decide what was said and to be sure that the witnesses were not
296
He ar say E vidence

mistaken in what they believed had been said to them. Further, they must be satisfied that
the declarant did not concoct or distort to his advantage or the disadvantage of the accused
the statement relied upon and where there is material to raise the issue, that he was not
activated by any malice or ill-will. Further, where there are special features that bear on the
possibility of mistake then the juries’ attention must be invited to those matters.
. . . I wholly accept that the doctrine [of res gestae] admits the hearsay statements, not
only where the declarant is dead or otherwise not available but when he is called as a
witness. . . . I would . . . strongly deprecate any attempt in criminal prosecutions to use the
doctrine as a device to avoid calling, when he is available, the maker of the statement. Thus
to deprive the defence of the opportunity to cross-examine him, would not be consistent
with the fundamental duty of the prosecution to place all the relevant material facts before
the court, so as to ensure that justice is done.70
The modern-day flexibility of this exception may be illustrated by the fact that, in R v
Lawson,71 words spoken within an hour of the incident were held to fall within the excep-
tion. Of course, the exception is clearly inapplicable where the relevant statement is made
20 minutes before the incident in question.72

4.2.1.2  Statements Accompanying and Explaining a Relevant Act

In R v Kearley, Lord Bridge of Harwich ‘accept[ed] the proposition that, if an action is
of itself relevant to an issue, the words which accompany and explain the action may be
given in evidence, whether or not they would be relevant independently’.73 Thus, a state-
ment made at the time of performing an act which would be relevant in the absence of the
statement is admissible in evidence so long as the statement explains the act,74 and was
made more or less contemporaneously with the act by the person performing the act. The
fact ‘that the declaration was by one person, and the accompanying act by another’, would
not suffice.75 If the relevant act was a continuing one, it is immaterial that a considerable
period of time elapsed before the making of the statement; what is crucial is that it must
have been made during the continuance of the act.76
It is inappropriate for a defendant who exercised the right to silence at both the pre-trial
and trial stages to invoke the ‘statements accompanying and explaining relevant acts’
exception to secure the admission of evidence of exculpatory statements made out of
court by the defendant.77

4.2.1.3  Statements Concerning Contemporaneous State of Mind

Out-of-court statements concerning contemporaneous state of mind (such as knowl-
edge, emotion, or intention) are admissible in evidence in certain circumstances. The
extent to which evidence of hearsay statements suggesting knowledge of particular facts
is admissible78 has been explained as follows:
It is, of course, elementary that statements made to a witness by a third party are not
excluded by the hearsay rule when they are put in evidence solely to prove the state of

70  [1987] AC 281, 300–2. See also Ratten v R [1972] AC 378; Mills v R [1995] 1 WLR 511; R v Lawson [1998]

Crim LR 883; R v Jamieson [2003] EWCA Crim 3755.

71  [1998] Crim LR 883. 72  R v Newport [1998] Crim LR 581.
73  [1992] 2 AC 228, 246 (italics added). See generally R Munday, ‘“Preservation” of the Common Law and the

Perpetuation of Error: Section 118, r 4(b) of the Criminal Justice Act 2003’ (2008) 172 Justice of the Peace 348.
74  R v Bliss (1837) 7 Ad & E 550, 112 ER 577. 75  Howe v Malkin (1878) 40 LT 196, 196.
76  Rawson v Haigh (1824) 2 Bing 99, 130 ER 242; Homes v Newman [1931] 2 Ch 112.
77  R v Callender [1998] Crim LR 337.
78  See generally P B Carter, ‘Hearsay, Relevance and Admissibility: Declarations as to State of Mind and

Declarations against Penal Interest’ (1987) 103 Law Quarterly Review 106.

Criminal Proceedings 297

mind either of the maker of the statement or of the person to whom it was made. What a
person said or heard said may well be the best and most direct evidence of that person’s
state of mind. This principle can only apply, however, when the state of mind evidenced
by the statement is either itself directly in issue at the trial or of direct and immediate rel-
evance to an issue which arises at the trial.79
What is apparently required, therefore, is a degree of probative value substantially above
the bare minimum.
There appear to be conflicting authorities on whether evidence suggesting an intent
to perform a particular act is admissible to establish that the intent was in fact carried
out (that is, that the act in question was performed).80 The main authority cited for the
view that such evidence is admissible is R v Buckley.81 The accused was charged with
murdering a police officer on a certain night. The deceased’s superior officer was permit-
ted to testify that, that morning, the deceased had told him that he intended to watch
the movements of the accused that night. The superior officer had then said, ‘I will send
a man to assist you about nine o’clock’, to which the deceased had responded, ‘That will
be too late, I will go about dusk, myself’. No reference was made to the hearsay rule, and
it should be noted that the decision might well have been influenced by the fact that
there was evidence that the victim was seen shortly after dark, possibly travelling in
the direction of the accused’s cottage. More recently, in R v Moghal,82 the accused was
charged with a murder which could have been committed only by him, his mistress, or
both. The mistress had earlier been acquitted. To support his defence that the mistress
had alone been responsible for the murder, the accused sought to adduce in evidence a
tape recording by her in which she declared her intention to kill the victim. The Court
of Appeal thought that, had the trial judge been asked to rule on the issue, this evidence
should have been held admissible.
The main authority cited for the view that such evidence is inadmissible is R v
Wainwright.83 This was a murder case in which the prosecution sought to adduce evidence
that the victim had said, on leaving her home, that she was going to the accused’s prem-
ises. The evidence was held to be inadmissible on the basis that ‘it was only a statement
of intention which might or might not have been carried out’.84 To a similar effect are R
v Pook85 and R v Thomson.86 In Thomson, the accused was charged with using an instru-
ment on a woman for the purpose of procuring an abortion. In support of his defence
that the woman (who had later died from an unrelated cause) had operated on herself, the
accused sought to ask a prosecution witness in cross-examination whether the woman
had stated, some weeks before the operation, that she intended to operate on herself. The
Court of Criminal Appeal held that this evidence had been correctly excluded, expressly
rejecting the argument that cases such as this, where it was the defence which was seek-
ing to introduce the evidence of intent, should be distinguished from cases where such
evidence was sought to be introduced by the prosecution. Finally, it should be noted that
Lord Bridge expressed doubts in Blastland about what the Court of Appeal had said in
Moghal, remarking that, ‘I cannot see how a threat by Sadiga against Rashid’s life, made
six months before the murder, however virulently the threat was expressed, was of any

79  R v Blastland [1986] AC 41, 54 (italics added). See also R v Williams (David) [1998] Crim LR 494.
80 See generally R Munday, ‘Legislation that Would “Preserve” the Common Law:  The Case of the
Declaration of Intention’ (2008) 124 Law Quarterly Review 46; C F H Tapper, ‘Hillmon Rediscovered and
Lord St Leonards Resurrected’ (1990) 106 Law Quarterly Review 441.
81  (1873) 13 Cox CC 293. 82  (1977) 65 Cr App R 56. 83  (1875) 13 Cox CC 171.
84  (1875) 13 Cox CC 171, 172 per Lord Cockburn CJ. 85  (1871) 13 Cox CC 172 n.
86  [1912] 3 KB 19.
298
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relevance to the issue whether Moghal was a willing accomplice or an unwilling spectator
when the murder was committed’.87
The apparent conflict remains formally unresolved, but a sensible approach may be to
adopt the view of Mason CJ, expressed in the decision of the High Court of Australia in
Walton v R, that ‘out-of-court statements which tend to prove a plan or intention of the
author [should be admissible in evidence], subject to remoteness in time and indications
of unreliability or lack of probative value’.88

4.2.1.4  Statements Concerning Contemporaneous Physical State

Such statements are admissible in evidence:
statements made by a workman to his wife of his sensations at the time, about the pain in
the side or head, or what not—whether the statements were made by groans or by actions or
were verbal statements—would be admissible to prove the existence of those sensations.89
Again:
If a man says to his surgeon, ‘I have a pain in the head,’ or a pain in such a part of the body,
that is evidence; but, if he says to his surgeon, ‘I have a wound’; and was to add, ‘I met
John Thomas, who had a sword, and ran me through the body with it,’ that would be no
evidence against John Thomas.90
Thus ‘the statements must be confined to contemporaneous symptoms, and nothing in
the nature of a narrative is admissible as to who caused them, or how they were caused’.91
Furthermore, as explained by Sir Jocelyn Simon P in Tickle v Tickle: ‘If what a patient
says about her state of health to a doctor is admissible as part of the res gestae notwith-
standing the hearsay rule, it seems to me that what the doctor says to the patient is no less
admissible when its adduction is required in order that justice should be done.’92

4.2.1.5  Availability of Maker of Statement

It has been confirmed that the failure to call the maker of a res gestae statement as a wit-
ness, if he or she is available, does not affect the admissibility in evidence of the statement,
but is a factor that may be considered in having regard to the exclusionary discretion in
section 78 of the Police and Criminal Evidence Act 1984:
Once evidence is within the res gestae exception to the hearsay rule, it is admissible. There
is no rider that, as a matter of law, it is not to be admitted merely because the maker of the
statement is available and can give evidence. . . .
. . . If the purpose of the Crown was that the res gestae evidence should be given without
any opportunity being given to the defence to cross-examine the maker of the statement,
the court might well conclude that the admission of the evidence would indeed have an
adverse effect on the fairness of the proceedings and refuse to allow it to be given. As a
general principle, it cannot be right that the Crown should be permitted to rely only on
such part of a victim’s evidence as they consider reliable, without being prepared to tender
the victim to the defence, so that the defence can challenge that part of the victim’s evi-
dence on which the Crown seeks to rely and, if so advised, elicit that part of her evidence
on which the defence might seek to rely.93

87  [1986] AC 41, 60. 88  (1989) 166 CLR 283, 290. See also Kamleh v R [2005] HCA 2.
89  Gilbey v Great Western Railway Co (1910) 102 LT 202, 203.
90  R v Nicholas (1846) 2 Car & K 246, 248; 175 ER 102, 102.
91  R v Gloster (1888) 16 Cox CC 471, 473. 92  [1968] 1 WLR 937, 942.
93  A-G’s Reference (No 1 of 2003) [2003] EWCA Crim 1286, [2003] 2 Cr App R 29 at [18], [21].
Criminal Proceedings 299

4.2.2  Common Enterprise

Where a party to a common purpose, such as a conspiracy, makes a statement in the
course of and in furtherance of that purpose, this statement is admissible in evidence
against all other parties to the common purpose.94 The Court of Appeal stated in R v
Platten:
Statements made during the conspiracy and as part of the conspiracy, because they are
part of the natural process of making the arrangements to carry out the conspiracy, will
be admissible. . . .
. . . the evidence is admissible when it can be said of it ‘this is the enterprise in opera-
tion’. Furthermore . . . the evidence is admissible not just as to the nature and extent of the
conspiracy, but also as to the participation in it of persons absent when the declarations
are made.95
While this exception to the hearsay rule is of particular relevance to prosecutions for
conspiracy, its use is not necessarily confined to such prosecutions. It is essential that
independent evidence be adduced of the existence of the common purpose and the
involvement in it of all persons against whom the statement is to be used. The exception is
inapplicable ‘where individual defendants are charged with a number of separate substan-
tive offences and the terms of a common enterprise are not proved or are ill-defined’.96

4.3  Admissibility in the Interests of Justice

Very radically by the standards of previous hearsay doctrine, hearsay evidence will now
be admissible under section 114(1)(d) if ‘the court is satisfied that it is in the interests of
justice for it to be admissible’.97 Section 114(2) provides that, in deciding whether a state-
ment should be admitted in evidence on this basis,
the court must have regard to the following factors (and to any others it considers
relevant)—
(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, or can be, given on the matter or evidence mentioned
in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) 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 to be;
(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;

94  R v Walters (1979) 69 Cr App R 115; R v Donat (1985) 82 Cr App R 173; R v Gray [1995] 2 Cr App R 100;

R v Jones [1997] 2 Cr App R 119; R v Murray [1997] 2 Cr App R 136. See generally K Spencer, ‘The Common
Enterprise Exception to the Hearsay Rule’ (2007) 11 International Journal of Evidence and Proof 106. For
a Canadian perspective, see L Dufraimont, ‘R v Mapara: Preserving the Co-conspirators’ Exception to the
Hearsay Rule’ (2006) 51 Criminal Law Quarterly 169.
95  [2006] EWCA Crim 140 at [35]–[36]. 96  R v Murray [1997] 2 Cr App R 136, 148.
97  Birch describes this as the ‘single most intriguing feature of the Act’:  D Birch, ‘The New Law of

Hearsay: Criminal Justice Act 2003’ [2005] 3 Archbold News 6, 9.

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(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.98
This inclusionary power or ‘safety valve’ is clearly aimed at securing the admissibility of
hearsay evidence considered sufficiently reliable. While such a power is now a feature of
hearsay doctrine in several common law jurisdictions,99 it is not uncontroversial, for rea-
sons vividly explained by the US Supreme Court in Crawford v Washington:100
Reliability is an amorphous, if not entirely subjective, concept. There are countless fac-
tors bearing on whether a statement is reliable . . . Whether a statement is deemed reliable
depends heavily on which factors the judge considers and how much weight he accords
each of them. Some courts wind up attaching the same significance to opposite facts.
For example, the Colorado Supreme Court held a statement more reliable because its
inculpation of the defendant was ‘detailed,’ . . . while the Fourth Circuit found a state-
ment more reliable because the portion implicating another was ‘fleeting’ . . . The Virginia
Court of Appeals found a statement more reliable because the witness was in custody and
charged with a crime (thus making the statement more obviously against her penal inter-
est), . . . while the Wisconsin Court of Appeals found a statement more reliable because
the witness was not in custody and not a suspect . . . Finally, the Colorado Supreme Court
in one case found a statement more reliable because it was given ‘immediately after’ the
events at issue, . . . while that same court, in another case, found a statement more reliable
because two years had elapsed.101
The Court of Appeal has emphasized that evidence is not ‘routinely to be admitted’102
under section 114(1)(d). In a similar vein, the Administrative Court has noted that,
despite a body of opinion that ‘the interests of justice provision under section 114 is a
limited inclusionary discretion to be used only exceptionally, . . . there is nothing in the
section which suggests such a narrow approach. . . . Nevertheless, the section must not be
lightly applied.’103
The Court of Appeal takes a pragmatic approach to the interpretation of section 114(2),
holding that it is unnecessary for the trial judge to reach a concluded view on each of the
factors enumerated:
What is required of him is to give consideration to those factors. There is nothing in the
wording of the statute to require him to reach a specific conclusion in relation to each or
any of them. He must give consideration to those identified factors and any others which

98  See generally G Durston, ‘Hearsay Evidence and the New Inclusionary Discretion’ (2004) 168 Justice

of the Peace 788; R Munday, ‘The Judicial Discretion to Admit Hearsay Evidence’ (2007) 171 Justice of
the Peace 276; M Stockdale and E Piasecki, ‘The Safety-Valve:  Discretion to Admit Hearsay Evidence in
Criminal Proceedings’ (2012) 76 Journal of Criminal Law 314.
99  See generally A L-T Choo, Hearsay and Confrontation in Criminal Trials (1996) Ch 7.
100  124 S Ct 1354 (2004). See generally A Choo, ‘Crawford v Washington: A View from across the Atlantic’

(2004) 2(1) International Commentary on Evidence.

101  124 S Ct 1354, 1371 (2004) (italics in original). Note, however, the comment by H L Ho that, while

‘there can be differences of opinion on the reliability of a statement’, ‘it is another thing altogether to sug-
gest that it is impossible to make any objectively defensible assessment of reliability’: H L Ho, ‘Confrontation
and Hearsay: A Critique of Crawford’ (2004) 8 International Journal of Evidence and Proof 147, 160 (italics
in original).
102  R v Y [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [62].
103  Sak v CPS [2007] EWHC 2886 (Admin), (2007) 172 JP 89 at [20]. See also R v Z [2009] EWCA Crim 20,

[2009] 3 All ER 1015 at [20]: ‘In our judgment, s 114(1)(d) of the 2003 Act is to be cautiously applied, since
otherwise the conditions laid down by Parliament in s 116 would be circumvented. . . . But s 114(1)(d) should
not be so narrowly applied that it has no effect.’
Criminal Proceedings 301

he considers relevant (as expressed in s 114(2) before the nine factors are listed). It is then
his task to assess the significance of those factors, both in relation to each other and hav-
ing regard to such weight as, in his judgment, they bear individually and in relation to
each other. Having approached the matter in that way, he will be able, as it seems to us, in
accordance with the words of the statute, to reach a proper conclusion as to whether or not
the . . . evidence should be admitted.104
It is to be hoped that this is not interpreted as a licence to engage in less than rigorous
consideration of all factors relevant in a particular case.
In R v Finch,105 Finch and Richer were jointly charged with possessing a prohibited
firearm and possessing ammunition without a firearm certificate. In his police interview,
Richer admitted possessing the items but said that Finch had no knowledge of them.
Richer pleaded guilty. Finch argued at his trial that he had no knowledge of the firearm.
Richer was brought to court but, being a reluctant witness, was not called by the defence.
Instead, the defence sought to rely on Richer’s statements in his police interview. The
Court of Appeal endorsed the trial judge’s decision that these statements were not admis-
sible in evidence under section 114(1)(d):106
The judge worked through the relevant factors set out in section 114(2) of the 2003
Act. He accepted that the evidence was, if true, of substantial probative value. He was
plainly well aware that the assertion went to the heart of the defence of Finch and
that there was otherwise only the evidence of Finch himself, so that the assertion was
of considerable importance to the case as a whole. He concluded, however, that oral
evidence of what Richer said about Finch was available to be given. He was unable to
see how Richer could damage his own position by giving evidence that Finch was an
innocent passenger [in the car where the items were found]. He also considered, in
reference to sub-paragraph (e) of section 114(2) of the 2003 Act, the potential unreli-
ability of Richer if he was not prepared to support in the witness box what he had said
to the police. He correctly addressed the difficulty for the Crown of controverting or
challenging Richer’s assertion if Richer were not in the witness box to make it. His
conclusion was that the interests of justice did not call for the interviews to be admit-
ted as hearsay. Plainly in reaching that conclusion the principal factor was the fact that
Richer was available to give oral evidence if compelled to do so, together with the vari-
ous consequences which that entailed.
This was a situation calling for the exercise of the judgment of the trial judge. This court
will interfere if, but only if, he has exercised it on wrong principles or reached a conclusion
which was outside the band of legitimate decision available to him. We are unable to see
that his decision can be criticised on either ground. . . .
Whatever might be the situation . . . if an erstwhile co-accused were to be unavailable or
had demonstrably good reason not to give evidence, it will, as it seems to us, often not be in
the interests of justice for evidence which the giver is not prepared to have tested, to be put
untested before the jury. It is not, in short, the law that every reluctant witness’s evidence
automatically can be put before the jury under section 114 of the 2003 Act.107

104  R v Taylor [2006] EWCA Crim 260, [2006] 2 Cr App R 14, (2006) 170 JP 353 at [39]. This was reiterated

in R v Y [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [56], and in R v Z [2009] EWCA Crim 20, [2009] 3
All ER 1015 at [21]. In the latter decision it was noted, however, that, the factors being mandatory, ‘the judge
should . . . make it clear that he has taken them into account’: at [21].
105  [2007] EWCA Crim 36, [2007] 1 WLR 1645. See generally C Tapper, ‘Use of Third Party Confessions: R

v Finch’ (2007) 11 International Journal of Evidence and Proof 318.

106  As Richer was not a co-defendant s 76A of the Police and Criminal Evidence Act 1984 was held to be

inapplicable.
107  [2007] EWCA Crim 36, [2007] 1 WLR 1645 at [22]–[24].
302
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A distinction was drawn therefore between unavailability and unwillingness to testify; a

finding of admissibility would be more likely in the case of the former.
In R v McLean,108 McLean, Harris, and Paine were co-defendants in a murder trial.
McLean sought unsuccessfully to adduce in evidence statements made by Harris to
prison officers, while on remand in custody, that Paine had stabbed the deceased.
Harris did not testify. The Court of Appeal held that the trial judge ought to have given
proper consideration to whether these statements were admissible in evidence under
section 114(1)(d).
In R v Y the Court of Appeal was concerned, in an interlocutory appeal by the pros-
ecution, with the following scenario: ‘In a case of murder where the defendant, Y, was on
trial alone, the Crown applied to the trial judge to admit hearsay evidence consisting of
a confession made by another man, X, who had subsequently pleaded guilty, which con-
fession implicated Y. The application was made under section 114(1)(d) of the Criminal
Justice Act 2003.’109 Notably, in this case, unlike in Finch or McLean, it was the prosecu-
tion rather than the defence that was seeking to invoke section 114(1)(d), a point regarded
by the Court as significant.110 The Court, while holding that section 114(1)(d) was capable
of application and that whether it should actually be applied was a matter for the trial
judge,111 urged caution in considering statements that inculpated, rather than exculpated,
the defendant. The Court articulated in full the considerations to be kept in mind in a
case like the present:
The interests of justice test will require, in a case such as the present, attention to the dif-
ference between an admission against interest and an accusation against someone else.
That consideration no doubt also comes into play under section 114(2)(e), the reliability of
the maker of the statement, and (d), the circumstances in which the statement was made.
Absent inducement, mental instability or perhaps an incentive to protect someone else,
it can no doubt normally be said that a person is unlikely to confess to a serious crime
unless he did it. Precisely the reverse may well be true of an accusation against someone
else, whether it is combined with a reliable confession or not. It may be evident that the
maker of the accusation has a possible motive to blame someone else when no one else
was in fact involved, or (where plainly someone else was involved) to cast the blame on
the wrong person. Self-interest . . . is one obvious such motive; it is of course not the only
one, for diversion of the accusation to protect another or out of animus against the person
accused, may also, on the facts of different cases, fall for consideration. Sometimes it may
be impossible to know whether such a motive exists or not. Sometimes it will be signifi-
cant that the possibility of mistake cannot adequately be explored. In a few cases, it is pos-
sible that the accusation can be regarded as sufficiently reliable for it to be in the interests
of justice to admit it, even though it cannot be tested by questioning the maker. It seems to
us that it is likely that that will be the unusual case. . . .
Both the interests of justice test and section 114(2)(g) command attention to the
question whether oral evidence can be given, rather than reliance be placed on the
hearsay statement. We would expect that before reaching the conclusion that it is in
the interests of justice to admit a hearsay statement, the judge must very carefully
consider the alternatives. The alternatives may well include the bringing of an avail-
able, but reluctant, witness to court. It by no means follows in practice that a witness
who has declined an invitation to make a statement will in fact refuse to give evidence

108  [2007] EWCA Crim 219, [2008] 1 Cr App R 11.

109  [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [1]‌.
110  [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [59].
111  [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [63].
Criminal Proceedings 303

if brought to court. If he may do so, then consideration will also need to be given to
whether justice would better be served by putting him before the jury so that they
can see him, with the possibility of applying to cross-examine him upon the previous
statement, rather than simply putting in that statement for evaluation in the abstract
by the jury. . . . Such a course would not necessarily prevent a subsequent application
under section 114(1)(d) if it became apparent that there was sufficient reliability in the
statement to justify it.112
In Sak v CPS the defendant was convicted of driving whilst unfit on the basis of the state-
ment of a doctor, admitted in evidence under section 114(1)(d), who had examined the
defendant at the police station following his arrest. Holding that the evidence had been
correctly admitted, the Administrative Court noted that ‘the Crown could not have
known earlier that the witness was not available’; ‘the doctor had used his best endeav-
ours to obtain [the] services of a locum and was unsuccessful at the last moment’.113 The
Court further observed:
With regard to prejudice to the appellant, the issues in the case could be dealt with in a
number of ways: firstly, by the appellant giving evidence himself of what took place during
the examination by the doctor. This would give the bench the opportunity to assess his
alleged language problems, both in respect of comprehension and ability to communicate;
also by cross-examination of the police officers as to how he was able to communicate and
to comprehend at the time, which evidence, if favourable to the appellant, would in turn
have a knock-on effect in relation to the weight to be given to the doctor’s evidence, and
finally by way of submissions by pointing out to the bench any difficulties involved in try-
ing to controvert such parts of the evidence which were in dispute, and its impact on the
presentation of the defence.114
Admissibility under section 114(1)(d) is not necessarily precluded by the fact that the
maker of the statement is the defendant’s spouse or civil partner and would not in the
circumstances of the case be compellable as a witness for the prosecution by virtue of
section 80 of the Police and Criminal Evidence Act 1984:115
Compelling a wife to give evidence is not the same thing as permitting another witness
to give evidence of a voluntary statement made by the wife in the past. Thus section 80 of
PACE does not pose a legal bar to the admission of such evidence. Furthermore, if a wife
has voluntarily made a statement to the police, the identity between husband and wife
and the risk of marital discord will not be in play if that statement is subsequently placed
in evidence to the same extent as if the wife is asked to give oral evidence to the jury that
implicates her husband. Nevertheless, it could well be objectionable if the police take a
witness statement from a wife, intending to call her to give evidence, and then seek to
place it in evidence when the wife states that she does not wish to give evidence against
her husband. There is an obvious paradox in excusing the wife from giving evidence, but
then placing before the jury in the form of a hearsay statement the very evidence that she
does not wish to give.116

112  [2008] EWCA Crim 10, [2008] 1 WLR 1683 at [58]–[60]. For a Canadian perspective on such issues,

see L Stuesser, ‘Using the Statements of Co-Accused’ (2008) 13 Canadian Criminal Law Review 73. See also
M Stockdale and J Clough, ‘Confessions and the Criminal Justice Act 2003’ (2013) 77 Journal of Criminal
Law 231.
113  [2007] EWHC 2886 (Admin), (2007) 172 JP 89 at [18].
114  [2007] EWHC 2886 (Admin), (2007) 172 JP 89 at [22].
115  See the discussion in Chapter 13.
116  R v L [2008] EWCA Crim 973, [2009] 1 WLR 626 at [35].
304
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Whether notification of non-compellability had been given is also a relevant considera-

tion: ‘the prosecution’s hand is likely to be strengthened if they can show that the wife
made her statement voluntarily, having been expressly informed that she was under no
obligation to make it’.117
If a particular issue in a case is an uncontentious one, invoking section 114(1)(d) to
secure the admissibility in evidence of a statement for its relevance to that issue may be
more easily achieved than if the issue is of greater importance.118
With an extensive range of factors enumerated in section 114(2), the relevant case
law appears to confirm that a determination of admissibility under section 114(1)(d) is a
fact-specific exercise with which an appellate court would be reluctant to interfere.119 The
decisions examined in this section do, however, provide some indication of the factor or
factors regarded as especially important in the case at hand.

4.4  Multiple Hearsay

The preceding discussions are subject to the principle that multiple hearsay (second-hand
hearsay, third-hand hearsay, etc) is admissible only where one of the requirements in
section 121(1) is satisfied. Section 121(1) provides:
A hearsay statement is not admissible to prove the fact that an earlier hearsay statement
was made unless—
(a) either of the statements is admissible under section 117, 119 or 120,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account
how reliable the statements appear to be, is so high that the interests of justice require
the later statement to be admissible for that purpose.
Maher v DPP has already been discussed in Section 4.1.2 in the context of section 117.
This was a case involving multiple hearsay: the most recent out-of-court statement, that
of the police clerk in the Police Incident Log, was being used to prove the making of the
earlier statement by Miss McDonough (which itself reported the even earlier statement of
Mrs Dennis, the person with the relevant personal knowledge). It was held that the police
clerk’s statement, although inadmissible in evidence under section 117, was admissible in
evidence under section 121(1)(c), Scott Baker LJ stating:
Bearing in mind that the appellant admitted that her car, YF51 SYR, was a blue BMW
Mini and was parked in the Sainsbury’s car park at the material time, and that she was
the driver, and that Mr Huddlestone and Miss McDonough returned to find their car
damaged, the only issue could be whether, for some inexplicable reason, Mrs Dennis
wrote down the number of the appellant’s car in error for some other car, or there had
been some misstatement of the number further down the line of communication to the
police log.
In my judgment, both scenarios are unlikely in the extreme. Mrs Dennis could have
been cross-examined about the possibility of an error on her part. . . . The identification
of the number of the offending vehicle appears, on its face, to be very reliable, as does its

117  R v L [2008] EWCA Crim 973, [2009] 1 WLR 626 at [33].

118  R v Adams [2007] EWCA Crim 3025, [2008] 1 Cr App R 35, (2007) 172 JP 113.
119  Note, however, R v Z [2009] EWCA Crim 20, [2009] 3 All ER 1015 at [25]: ‘The court will be more will-

ing to interfere with [a trial judge’s] decision if he has not taken into account, or has not shown that he took
into account, relevant matters listed in sub-s (2).’
Criminal Proceedings 305

transmission via Miss McDonough to the Police Incident Log. It would be extraordinary
if there was an error in transmission.120
Interestingly, Scott Baker LJ commented that, in considering ‘the interests of justice’
under section 121(1)(c), it was possible to have regard to the same ‘interests of justice’ fac-
tors listed for consideration in a different context in section 114(2).121

4.5  Other Safeguards

There is a specific power to exclude hearsay evidence under section 126(1)(b) of the
Criminal Justice Act 2003 if ‘the court is satisfied that the case for excluding the state-
ment, taking account of the danger that to admit it would result in undue waste of time,
substantially outweighs the case for admitting it, taking account of the value of the evi-
dence’. Additionally, section 125(1) provides:
If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any
time after the close of the case for the prosecution that—
(a) the case against the defendant is based wholly or partly on a statement not made in
oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its
importance to the case against the defendant, his conviction of the offence would be
unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers
that there ought to be a retrial, discharge the jury.

4.6  A Brief Evaluation

It has been seen that the provisions of the Criminal Justice Act 2003, largely follow-
ing the recommendations of the Law Commission, maintain a ‘rule and exceptions’
approach to hearsay doctrine, albeit that the specific exceptions are broad and there
is an interests-of-justice exception. Lord Justice Auld was critical in his Report of any
approach to hearsay that continues to maintain a prima facie exclusionary rule, rec-
ommending ‘further consideration of the reform of the rule against hearsay, in par-
ticular with a view to making hearsay generally admissible subject to the principle of
best evidence, rather than generally inadmissible subject to specified exceptions as
proposed by the Law Commission’.122
An alternative approach might have been to maintain a rule against hearsay but,
instead of recognizing specific exceptions and an interests-of-justice exception, sim-
ply to have recognized the interests-of-justice exception as the only exception. It is
arguable that the availability of an interests-of-justice exception makes the exist-
ence of specific exceptions unnecessary. Dennis wrote of the interests-of-justice
exception: ‘It will be interesting to see whether the discretion remains as intended,

120  [2006] EWHC 1271 (Admin), (2006) 170 JP 441 at [20]–[21].

121  [2006] EWHC 1271 (Admin), (2006) 170 JP 441 at [24]. See also R v Musone [2007] EWCA Crim 1237,
[2007] 1 WLR 2467, on the admissibility of evidence of the out-of-court statement by Patterson reporting
an earlier out-of-court statement by the deceased identifying the defendant as the person responsible for
his injuries.
122  Lord Justice Auld, A Review of the Criminal Courts of England and Wales (2001) Ch 11 para 104,

accessible via http://www.criminal-courts-review.org.uk. See also T Worthern, ‘The Hearsay Provisions of

the Criminal Justice Act 2003: So Far, not So Good?’ [2008] Criminal Law Review 431.
306
He ar say E vidence

a marginal sweeping-up power operating outside the statutory and preserved com-
mon law exceptions in ss 116–118, or whether in practice it will be invoked in addi-
tion to, or even in substitution for, those exceptions.’123 It has been questioned, for
example, whether there was any real point to preserving the common law res ges-
tae exception.124 It seems clear that most of the hearsay evidence admissible under
this exception would be caught in any event by the specific exceptions in the Act,
with the remainder certainly able to be admitted under the interests-of-justice
exception.
The Canadian experience is instructive in this context. In R v Khan125 in 1990,
the Supreme Court of Canada radically recognized the existence of a residual dis-
cretion to admit hearsay evidence where, in the context of the particular case, the
evidence is necessary and sufficiently reliable.126 Technically, this residual exception
stands alongside and does not replace the specific exceptions to the hearsay rule. The
Supreme Court has stated, however, that all specific exceptions must be interpreted
in the light of the necessity-and-reliability test. Thus the fact that a specific excep-
tion applies does not mean that the evidence will be admissible if the application of
the necessity-and-reliability test requires otherwise.127 It is, however, only in rare
cases that ‘evidence falling within an existing exception may be excluded because

123
  I Dennis, ‘The Criminal Justice Act 2003: Part 2’ [2004] Criminal Law Review 251, 252. Similarly,
Birch asked: ‘if the “interests of justice” suggest admissibility, might a court now simply say so, and get on
with the case, whether or not the evidence is equally admissible under another exception?’ Birch did not
consider that such an approach would be appropriate: ‘Given that it must be sound practice to choose as
the basis of admissibility an exception that requires as little as possible by way of supporting argument, the
more straightforward automatic exceptions should surely be considered first. It would also be advisable,
when formulating an argument under the safety valve, to brief oneself as to the grounds on which the evi-
dence has fallen short of admissibility under one of the regular exceptions’. See D Birch, ‘The New Law of
Hearsay: Criminal Justice Act 2003’ [2005] 3 Archbold News 6, 9.
124
  See generally D Ormerod, ‘Redundant Res Gestae?’ [1998] Criminal Law Review 301.
125
  [1990] 2 SCR 531. See also R v F (W J) [1999] 3 SCR 569; R v Parrott [2001] 1 SCR 178; R v Khelawon
[2006] 2 SCR 787; R v Couture [2007] 2 SCR 517; R v Devine 2008 SCC 36, [2008] 2 SCR 283; R v Youvarajah
2013 SCC 41, [2013] 2 SCR 720. On the Canadian approach to hearsay, see, generally, S Akhtar, ‘Hearsay: The
Denial of Confirmation’ (2005) 26 Criminal Reports (6th) 46; S Akhtar, ‘R v Khelawon:  Corroboration
Clarified’ (2007) 53 Criminal Law Quarterly 227; N Bala, ‘The Supreme Court Sends a Clear Message
(again):  Children Are not Adults’ (1999) 27 Criminal Reports (5th) 195; R Bessner, ‘Sensitivity of the
Supreme Court to the Plight of Child Victims of Sexual Abuse’ (1999) 27 Criminal Reports (5th) 189; R J
Delisle, ‘B (K G) and its Progeny’ (1998) 14 Criminal Reports (5th) 75; D E Ives, ‘R v Couture—The Demise of
Spousal Hearsay?’ (2007) 47 Criminal Reports (6th) 70; D E Ives, ‘R v Khelawon—Continuing Reform of the
Law of Hearsay in Canada’ (2007) 11 International Journal of Evidence and Proof 213; J McInnes, ‘Devine
and Blackman: Back to the Future or Ahead to the Past?’ (2008) 57 Criminal Reports (6th) 31; S Moen,
‘Seeking More Than Truth:  A  Rationalization of the Principled Exception to the Hearsay Rule’ (2011)
48 Alberta Law Review 753; D M Paciocco, ‘The Principled Use of Hearsay in Civil Cases: A Technical
Guide to Avoiding Technicality’ (2008) 87 Canadian Bar Review 275; R Prithipaul, ‘Observations on the
Current Status of the Hearsay Rule’ (1996) 39 Criminal Law Quarterly 84; H Stewart, ‘Hearsay after Starr’
(2001) 7 Canadian Criminal Law Review 5; H Stewart, ‘Justice Frank Iacobucci and the Revolution in the
Common Law of Evidence’ (2007) 57 University of Toronto Law Journal 479; H Stewart, ‘Khelawon: The
Principled Approach to Hearsay Revisited’ (2007) 12 Canadian Criminal Law Review 95; D Stuart, ‘Starr
and Parrott:  Favouring Exclusion of Hearsay to Protect Rights of Accused’ (2001) 39 Criminal Reports
(5th) 284; L Stuesser, ‘R v Starr and Reform of the Hearsay Exceptions’ (2001) 7 Canadian Criminal Law
Review 55.
126  The Supreme Court has confirmed that whether the hearsay evidence is corroborated can be con-

sidered in determining the issue of sufficient, or ‘threshold’, reliability (R v Blackman 2008 SCC 37, [2008]
2 SCR 298 at [55]): ‘in appropriate circumstances, a corroborative item of evidence can be considered in
assessing the threshold reliability of a statement’.
127  R v Starr [2000] 2 SCR 144.
Criminal Proceedings 307

the indicia of necessity and reliability are lacking in the particular circumstances of
the case’.128

4.7  The European Human Rights Dimension

For a time, a pressing issue requiring proper resolution concerned the extent to which
the admission in evidence for the prosecution of out-of-court statements might fall
foul of the European Convention on Human Rights. Article 6(3)(d) of the Convention
provides, inter alia, that everyone charged with a criminal offence has the right ‘to
examine or have examined witnesses against him’.129 Following a stream of jurispru-
dence from the European Court of Human Rights involving cases from other juris-
dictions, the judgment in Al-Khawaja and Tahery v UK130 was the first judgment of
the Court to consider the hearsay provisions in operation in criminal proceedings in
England and Wales.131 In its judgment, the Court appeared to recognize the existence
of a rule whereby the introduction in evidence of a hearsay statement which consti-
tuted the sole or decisive evidence against the defendant would breach Article 6(3)(d)
and the general right to a fair trial under Article 6, unless the defendant had had an
opportunity at some stage to cross-examine the maker of the statement, or unless
the maker of the statement was kept from giving evidence through fear induced by
the defendant.132 Applying this rule in the case at hand, the Court found a violation
of Article 6(1), read in conjunction with Article 6(3)(d), in respect of each of the two
applicants.
Some months after the judgment in Al-Khawaja and Tahery v UK, the UK Supreme
Court had the opportunity to consider it. The appellants in R v Horncastle133 had been
convicted of serious criminal offences, the prosecution evidence including evidence of
statements of the victims of the alleged offences that was admitted under section 116 of
the Criminal Justice Act 2003. In one case the witness had died before the trial, and in
the other the witness had run away the day before the trial because she was too fright-
ened to give evidence. The appeals against conviction were dismissed by the Court
of Appeal. The Supreme Court unanimously dismissed the appellants’ appeals, Lord
Phillips delivering a judgment with which the other six members of the Court agreed.
Lord Phillips declined to follow Al-Khawaja and Tahery v UK, noting that, while ‘the
requirement to “take into account” the Strasbourg jurisprudence will normally result

128  R v Mapara [2005] 1 SCR 358 at [15].

129  See generally S Maffei, The Right to Confrontation in Europe:  Absent, Anonymous and Vulnerable
Witnesses (2012).
130  (2009) 49 EHRR 1.
131  This discussion is based on my comment on the case available at http://ukscblog.com/case-comment-r-

v-horncastle-2009-uksc-14, and on my contribution to B Emmerson, A  Ashworth, and A  Macdonald

(eds), Human Rights and Criminal Justice (3rd ed 2012) Ch 12. See also A L-T Choo, ‘Criminal Hearsay in
England and Wales: Pragmatism, Comparativism, and Human Rights’ (2013) 17 Canadian Criminal Law
Review 227.
132  (2009) 49 EHRR 1 at [37].
133  [2009] UKSC 14, [2010] 2 AC 373. See generally E Bjorge, ‘Exceptionalism and Internationalism

in the Supreme Court: Horncastle and Cadder’ [2011] Public Law 475; I Dennis, ‘The Right to Confront
Witnesses: Meanings, Myths and Human Rights’ [2010] Criminal Law Review 255; I Jones, ‘A Political
Judgment? Reconciling Hearsay and the Right to Challenge’ (2010) 14 International Journal of
Evidence and Proof 232; W E O’Brian Jr, ‘Confrontation: The Defiance of the English Courts’ (2011)
15 International Journal of Evidence and Proof 93; M Requa, ‘Absent Witnesses and the UK Supreme
Court:  Judicial Deference as Judicial Dialogue?’ (2010) 14 International Journal of Evidence and
Proof 208.
308
He ar say E vidence

in the domestic court applying principles that are clearly established by the Strasbourg
court’, the present case represented one of the ‘rare occasions where the domestic court
has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or
accommodates particular aspects of our domestic process. In such circumstances it is
open to the domestic court to decline to follow the Strasbourg decision, giving reasons
for adopting this course.’134
The reasons put forward in support of this conclusion included the following.
First, Lord Phillips was prepared to accept that the provisions of the 2003 Act, which
‘contain[ed] a crafted code intended to ensure that evidence is admitted only when it
is fair that it should be’,135 were being applied cautiously by the courts.136 While ‘the
justification for the sole or decisive test would appear to be that the risk of an unsafe
conviction based solely or decisively on . . . hearsay evidence is so great that such a con-
viction can never be permitted’, the provisions of the 2003 Act represented a ‘less dra-
conian’ way of protecting against the risk of an unsafe conviction.137 Secondly, a rule
excluding hearsay evidence that constituted the sole or decisive evidence against the
defendant did not exist in Canada, Australia, or New Zealand.138 Thirdly, the crimi-
nal procedure of England and Wales differed from that which was traditionally to
be found in civil law jurisdictions: ‘In this jurisdiction there is no judicial investiga-
tion, in the course of which a confrontation can take place between witnesses and
the suspect. The investigation into a crime is carried out by the police, who do not
act as judicial officers’.139 Fourthly, it might be difficult to determine in a particular
case whether hearsay evidence constitutes the ‘decisive’ evidence against the defend-
ant: ‘The judge will have to rule inadmissible any witness statement capable of prov-
ing “decisive”. This will be no easy task . . . If “decisive” means capable of making the
difference between a finding of guilt and innocence, then all hearsay evidence will
have to be excluded.’140 Fifthly, an analysis of Strasbourg cases in which violations of
Article 6(3)(d) had been found141 revealed that, if the law of England and Wales had
been applied in these cases, the relevant evidence would have been declared inadmis-
sible, and the defendant would not have been convicted, in almost all of them. This
was taken to ‘suggest that in general our rules of admissibility provide the defendant
with at least equal protection to that provided under the continental system’.142 In
conclusion, therefore, Lord Phillips, having ‘taken careful account of the Strasbourg
jurisprudence’, expressed the ‘hope that in due course the Strasbourg court may also
take account of the reasons that have led me not to apply the sole or decisive test in
this case’.143
Following the decision in Horncastle, the European Court of Human Rights accepted
the United Kingdom’s request for Al-Khawaja and Tahery v UK to be referred to the

134  [2009] UKSC 14, [2010] 2 AC 373 at [11]. 135  [2009] UKSC 14, [2010] 2 AC 373 at [36].
136  [2009] UKSC 14, [2010] 2 AC 373 at [39]. 137  [2009] UKSC 14, [2010] 2 AC 373 at [92].
138  [2009] UKSC 14, [2010] 2 AC 373 at [41], referring to the analysis of the position in these jurisdic-

tions presented in Annex 1 to the judgment. For further discussion see, on Australia, T Henning and J
Hunter, ‘Finessing the Fair Trial for Complainants and the Accused: Mansions of Justice or Castles in the
Air?’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law
Procedural Traditions (2012); and, on New Zealand, C Gallavin, ‘Reliability, Hearsay and the Right to a Fair
Trial in New Zealand’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining
Common Law Procedural Traditions (2012).
139  [2009] UKSC 14, [2010] 2 AC 373 at [62]. 140  [2009] UKSC 14, [2010] 2 AC 373 at [90].
141  Presented in Annex 4 to [2009] UKSC 14, [2010] 2 AC 373.
142  [2009] UKSC 14, [2010] 2 AC 373 at [93]. 143  [2009] UKSC 14, [2010] 2 AC 373 at [108].
Criminal Proceedings 309

Grand Chamber of the Court. Displaying in its judgment144 pragmatism but also a desire
to uphold defence rights, the Grand Chamber held that,
where a hearsay statement is the sole or decisive evidence against a defendant, its admis-
sion as evidence will not automatically result in a breach of [A]‌r t 6(1). At the same time
where a conviction is based solely or decisively on the evidence of absent witnesses, the
Court must subject the proceedings to the most searching scrutiny. Because of the dan-
gers of the admission of such evidence, it would constitute a very important factor to
balance in the scales, . . . and one which would require sufficient counterbalancing fac-
tors, including the existence of strong procedural safeguards. The question in each case
is whether there are sufficient counterbalancing factors in place, including measures that
permit a fair and proper assessment of the reliability of that evidence to take place. This
would permit a conviction to be based on such evidence only if it is sufficiently reliable
given its importance in the case.145
In Al-Khawaja’s case, the Grand Chamber considered that, having regard to the judge’s
direction to the jury and to the prosecution evidence supporting the relevant hearsay
statement, ‘the jury were able to conduct a fair and proper assessment of the reliability
of [the] allegations against [Al-Khawaja]’.146 Thus ‘there were sufficient counterbalanc-
ing factors to conclude that the admission in evidence of [the relevant] statement did not
result in a breach of [A]‌r t 6(1) read in conjunction with [A]rt 6(3)(d)’.147 In Tahery’s case,
on the other hand, the Grand Chamber found a violation of Article 6(1) read in conjunc-
tion with Article 6(3)(d) because
the decisive nature of [the relevant hearsay] statement in the absence of any strong corrob-
orative evidence . . . meant the jury . . . were unable to conduct a fair and proper assessment
of the reliability of [the] evidence [of the statement]. . . . there were not sufficient counter-
balancing factors to compensate for the difficulties to the defence which resulted from the
admission of [the] statement.148
The Court of Appeal of England and Wales has since considered the Grand Chamber
judgment on a number of occasions. Most notably, in R v Riat,149 the Court confirmed
that there was no requirement that the reliability of the hearsay evidence be demonstrated
by independent evidence: ‘a pre-condition that the hearsay be shown independently to
be accurate . . . would mean that hearsay evidence has to be independently verified before
it can be admitted or left to the jury’, which would ‘re-introduce the abolished rules for

144  Al-Khawaja and Tahery v UK (2011) 54 EHRR 23. See generally B de Wilde, ‘A Fundamental Review of

the ECHR Right to Examine Witnesses in Criminal Cases’ (2013) 17 International Journal of Evidence and
Proof 157; A du Bois-Pedain, ‘Hearsay Exceptions and Fair Trial Rights in Strasbourg’ [2012] Cambridge
Law Journal 257; J Elliott-Kelly, ‘Al-Khawaja and Tahery v United Kingdom’ [2012] European Human Rights
Law Review 81; R Epstein and S Foster, ‘Hearsay Evidence: When Is It Admissible?’ (2012) 176 Criminal Law
and Justice Weekly 447; M Redmayne, ‘Hearsay and Human Rights: Al-Khawaja in the Grand Chamber’
(2012) 75 Modern Law Review 865; J R Spencer, ‘Hearsay Evidence at Strasbourg: A Further Skirmish, or
the Final Round? A Comment on Al-Khawaja and Tahery v UK in the Grand Chamber’ [2012] 1 Archbold
Review 5.
145  (2011) 54 EHRR 23 at [147]. 146  (2011) 54 EHRR 23 at [157].
147  (2011) 54 EHRR 23 at [158]. 148  (2011) 54 EHRR 23 at [165].
149  [2012] EWCA Crim 1509, [2013] 1 WLR 2592. See generally J Jackson and S Summers, ‘Confrontation

with Strasbourg:  UK and Swiss Approaches to Criminal Evidence’ [2013] Criminal Law Review 114; M
Stockdale and A O’Cain, ‘The Admissibility of Hearsay Evidence’ (2012) 176 Criminal Law and Justice
Weekly 697; O Weetch, ‘When Is Supreme Better than Grand?’ [Jan 2013] Counsel 25. See also, in particular,
the earlier decision in R v Ibrahim [2012] EWCA Crim 837, [2012] 4 All ER 225 (on which see generally F
Stark, ‘Reconciling the Irreconcilable?’ [2012] Cambridge Law Journal 475).
310
He ar say E vidence

corroboration’.150 The Court also stated that a determination of whether there are ‘suf-
ficient counterbalancing factors’ involves a consideration of
both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the
evidence can safely be tested and assessed. We give simple examples only [of relevant
factors], which are in no sense exhaustive. The circumstances of the making of the hear-
say statement may be such as to reduce the risk of unreliability, for example if it is spon-
taneous . . . The disinterest of the maker of the statement may reduce the risk of deliberate
untruth. Independent dovetailing evidence may reduce the risk both of deliberate untruth
and of innocent mistake . . . The availability of good testing material . . . concerning the reli-
ability of the witness may show that the evidence can properly be tested and assessed. So may
independent supporting evidence.151
Significantly, the Court of Appeal has accepted that, in this context, its general prepared-
ness to defer to the views of trial judges must have limits: ‘[To subject] the evidence of an
absent witness [to] the most searching scrutiny . . . could not be accomplished were this court
to refuse to reverse after review a decision with which it disagreed, solely in the interest of
respecting the view of the trial judge.’152
The US approach provides an interesting comparison. The Sixth Amendment to the US
Constitution states: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.’ This so-called ‘Confrontation Clause’,153 which
may be regarded as the equivalent of Article 6(3)(d), has been the subject of scrutiny by the US
Supreme Court. After some previous uncertainty as to what the Clause required, the Court
held in Crawford v Washington that the Clause prevents the ‘admission of testimonial state-
ments of a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination’.154 A testimonial statement
is one ‘procured with a primary purpose of creating an out-of-court substitute for trial
testimony’.155 Thus a statement is not testimonial if made in response to an interrogation the
primary purpose of which ‘is to enable police assistance to meet an ongoing emergency’.156
The rationale is that, ‘because the prospect of fabrication in statements given for the pri-
mary purpose of resolving that emergency is presumably significantly diminished, the
Confrontation Clause does not require such statements to be subject to the crucible of
cross-examination’.157 The Supreme Court provided the following guidance on the determi-
nation of the primary purpose of an interrogation:
An objective analysis of the circumstances of an encounter and the statements and actions of
the parties to it provides the most accurate assessment of the ‘primary purpose of the inter-
rogation.’ The circumstances in which an encounter occurs—eg, at or near the scene of the
crime versus at a police station, during an ongoing emergency or afterwards—are clearly

150  [2012] EWCA Crim 1509, [2013] 1 WLR 2592 at [5]‌.

151  [2012] EWCA Crim 1509, [2013] 1 WLR 2592 at [6]‌.
152  R v Fagan [2012] EWCA Crim 2248 at [39].
153  See generally J J Tomkovicz, Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the

Balance between Freedom and Order (2011) Ch 7.

154 541 US 36, 53–4 (2004). See generally R M Cassidy, ‘Reconsidering Spousal Privileges after

Crawford’ (2006) 33 American Journal of Criminal Law 339; A Choo, ‘Crawford v Washington:  A  View
from across the Atlantic’ (2004) 2(1) International Commentary on Evidence; H L Ho, ‘Confrontation and
Hearsay: A Critique of Crawford’ (2004) 8 International Journal of Evidence and Proof 147.
155  Michigan v Bryant 131 S Ct 1143, 1155 (2011). See generally W E O’Brian Jr, ‘Confrontation and

Ongoing Emergencies: Michigan v Bryant’ (2011) 15 International Journal of Evidence and Proof 357.

156  Davis v Washington 547 US 813, 822 (2006). See generally ‘Sixth Amendment—Witness Confrontation’

(2006) 120 Harvard Law Review 213.

157  Michigan v Bryant 131 S Ct 1143, 1157 (2011).
Summary and Conclusion 311

matters of objective fact. The statements and actions of the parties must also be objectively
evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individu-
als involved in a particular encounter, but rather the purpose that reasonable participants
would have had, as ascertained from the individuals’ statements and actions and the circum-
stances in which the encounter occurred.158
This approach seeks to isolate for particular treatment those untested statements to
which special dangers might attach. It is notable that ‘procur[ation] with a primary pur-
pose of creating an out-of-court substitute for trial testimony’ appears to mirror closely
‘prepar[ation] for the purposes of pending or contemplated criminal proceedings, or for a
criminal investigation’, which, as we have seen, triggers additional requirements that the
statement so prepared must satisfy to be admissible in evidence under section 117 of the
Criminal Justice Act 2003.

5  Summary and Conclusion

The trend has been to increase the amount of hearsay evidence available to the trier of
fact. Indeed, the Civil Evidence Act 1995 abolished the rule against hearsay altogether
in civil proceedings. In criminal proceedings, the Criminal Justice Act 2003 introduced
a number of reforms to hearsay doctrine; in particular, implied assertions are no longer
subject to the rule, there is now an exception covering any statement made from first-hand
knowledge by a person who has become unavailable to testify, and hearsay evidence can
be admitted in the interests of justice. The Court of Appeal has thus far appeared willing
to endorse the potential admissibility of hearsay evidence in the interests of justice in a
wide variety of circumstances. The Grand Chamber of the European Court of Human
Rights has held that, while a conviction may be based on sole or decisive hearsay evidence,
a court must exercise extreme caution in permitting this.
Rather than focusing solely on the approach of the courts to hearsay evidence, regard
must also be had to relevant pre-trial practices and procedures. If the idea is that more
pre-trial statements by witnesses should potentially be admissible in evidence, urgent
attention must be paid to improving the procedures for obtaining and recording such
witness statements, such as ensuring that the video recording of witness interviews
becomes the rule rather than remaining the exception. At present, ‘the normal practice is
still for the investigating officer to ask the witness questions, and write down his answers
long-hand, on an official form, which the witness is then invited to read and sign when
the interview is over. As compared with video-recording, or even audio-recording, this
method is obviously primitive and deficient.’159

158  Michigan v Bryant 131 S Ct 1143, 1156 (2011). See also Melendez-Diaz v Massachusetts 129 S Ct

2527 (2009) (see generally N Klaiber, ‘Confronting Reality:  Surrogate Forensic Science Witnesses under
the Confrontation Clause’ (2011) 97 Virginia Law Review 199; J B Sokoler, ‘Between Substance and
Procedure: A Role for States’ Interests in the Scope of the Confrontation Clause’ (2010) 110 Columbia Law
Review 161); Bullcoming v New Mexico 131 S Ct 2705 (2011); Williams v Illinois 132 S Ct 2221 (2012) (see
generally ‘Confrontation Clause—Forensic Evidence’ (2012) 126 Harvard Law Review 266).
159  J R Spencer, ‘Special Measures and Unusual Muddles’ [2008] 6 Archbold News 7, 9. See also L Hope,

F Gabbert, A Heaton-Armstrong, and D Wolchover, ‘Self Administered Witness Interviews—Part I’ (2013)

177 Criminal Law and Justice Weekly 7; L Hope, F Gabbert, A Heaton-Armstrong, and D Wolchover, ‘Self
Administered Witness Interviews—Part II’ (2013) 177 Criminal Law and Justice Weekly 21; L Hope, F
Gabbert, A Heaton-Armstrong, and D Wolchover, ‘Self Administered Witness Interviews—Part III’ (2013)
177 Criminal Law and Justice Weekly 41; L Hope, F Gabbert, A Heaton-Armstrong, and D Wolchover,
‘Self Administered Witness Interviews—Part IV’ (2013) 177 Criminal Law and Justice Weekly 60;
312
He ar say E vidence

Further Reading
J Peysner, ‘Hearsay is Dead! Long Live Hearsay!’ (1998) 2 International Journal of Evidence
and Proof 232
S E Salako, ‘The Hearsay Rule and the Civil Evidence Act 1995: Where Are We Now?’ (2000)
19 Civil Justice Quarterly 371
J R Spencer, Hearsay Evidence in Criminal Proceedings (2nd ed 2014)

E Shepherd and R Milne, ‘“Have You Told Management about This?”:  Bringing Witness Interviewing
into the Twenty-First Century’ in A  Heaton-Armstrong, E Shepherd, G Gudjonsson, and D Wolchover
(eds), Witness Testimony: Psychological, Investigative and Evidential Perspectives (2006); J R Spencer, ‘The
Evidential Status of Previous Inconsistent Statements’ [2006] Cambridge Law Journal 518, 520; D Wolchover
and A Heaton-Armstrong, ‘Audio Recording Witness Statements—No Further Excuses, P-lease!’ (2010) 174
Criminal Law and Justice Weekly 341; D Wolchover and A Heaton-Armstrong, ‘Convicting the Innocent
OK?’ (2008) 172 Justice of the Peace 428; D Wolchover and A Heaton-Armstrong, ‘Taping Witness Statements
for Truer Verdicts’ (2009) 173 Criminal Law and Justice Weekly 84; D Wolchover and A Heaton-Armstrong,
‘Woeful Neglect’ (2007) 157 New Law Journal 624.
12
Expert Evidence

The admissibility in certain circumstances of expert opinion evidence constitutes an

important exception to the general rule which prohibits the admission of evidence
of a witness’s opinion and allows only the admission of evidence of facts perceived
by a witness. The issue of expert opinion evidence continues to generate considerable
publicity, and in 2011 the Law Commission published a report on the admissibility of
expert evidence in criminal proceedings.1 Expert evidence in criminal cases2 has been
brought dramatically to public attention since 2003 by three high-profile cases. The
Court of Appeal quashed the convictions of Sally Clark, 3 Angela Cannings,4 and Donna
Anthony, 5 each of whom had been convicted of murdering two of her infant children.6

1
  Law Commission (Law Com No 325), Expert Evidence in Criminal Proceedings in England and Wales
(2011). See generally G Edmond, ‘Is Reliability Sufficient? The Law Commission and Expert Evidence in
International and Interdisciplinary Perspective (Part 1)’ (2012) 16 International Journal of Evidence and
Proof 30; G Edmond, ‘Advice for the Courts? Sufficiently Reliable Assistance with Forensic Science and
Medicine (Part  2)’ (2012) 16 International Journal of Evidence and Proof 263; K Shaw, ‘Expert Evidence
Reliability: Time to Grasp the Nettle’ (2011) 75 Journal of Criminal Law 368; A Wilson, ‘The Law
Commission’s Recommendation on Expert Opinion Evidence: Sufficient Reliability?’ [2012] 3 Web Journal
of Current Legal Issues.
2
  See generally K Chasse, ‘Comment:  Conceding to the Edmond-Roach Reply’ (2012) 16 Canadian
Criminal Law Review 381; K Chasse, ‘Comment:  “Junk Science” by Way of a Higher Burden of Proof ’
(2012) 16 Canadian Criminal Law Review 323; G Edmond, ‘The “Science” of Miscarriages of Justice’
(2014) 37 University of New South Wales Law Journal 376; G Edmond and K Roach, ‘Comment: A Reply to
Chasse’s “‘Junk Science’ by Way of a Higher Burden of Proof ”’ (2012) 16 Canadian Criminal Law Review
357; G Edmond and K Roach, ‘A Contextual Approach to the Admissibility of the State’s Forensic Science
and Medical Evidence’ (2011) 61 University of Toronto Law Journal 343; R Stringer, ‘The Role of the Expert
in Criminal Trials’ (2014) 178 Criminal Law and Justice Weekly 655; Lord Thomas of Cwmgiedd, ‘Expert
Evidence:  The Future of Forensic Science in Criminal Trials’, 2014 Criminal Bar Association Kalisher
Lecture, 14 Oct 2014; Y Tinsley, ‘Science in the Criminal Courts:  Tool in Service, Challenge to Legal
Authority or Indispensable Ally?’ (2013) 25 New Zealand Universities Law Review 844; M Redmayne,
Expert Evidence and Criminal Justice (2001); P Roberts (ed), Expert Evidence and Scientific Proof in
Criminal Trials (2014).
3  [2003] EWCA Crim 1020, [2003] 2 FCR 447. 4  [2004] EWCA Crim 01, [2004] 2 Cr App R 7.
5  [2005] EWCA Crim 952.
6  See generally A Levy, ‘Commentary:  Value of Experts and their Evidence must Be Questioned if

Justice Is to Be Done’, The Guardian, 20 Jan 2004, 3; B Mahendra, ‘Crime and the Flawed Expert’ (2003)
153 New Law Journal 296; B Mahendra, ‘Justice—Tarnished, Tardy but Triumphant’ (2003) 153 New
Law Journal 162; B Mahendra, ‘The Legacy of Roy Meadow’ (2004) 154 New Law Journal 283; J Rowe,
‘Expert Evidence and Sudden Infant Deaths: Where Next?’ (2004) 154 New Law Journal 1757; M Smulian,
‘On Good Authority?’ (2004) 101(9) Law Society’s Gazette 22; D Wheeler, ‘The Far-Reaching Impact of
Cannings’ (2004) 154 New Law Journal 113; A Wilson, ‘Expert Testimony in the Dock’ (2005) 69 Journal of
Criminal Law 330; G Wood, ‘Equality of Arms’ (2004) 148 Solicitors’ Journal 7.
314
Expert E vidence

Crucially, in each case, expert evidence had been presented at trial with a view to high-
lighting the improbability that two (in the case of Clark and Anthony) or three (in the
case of Cannings) infant deaths in the same family could be due to natural causes. In
the aftermath of the judgment in the Cannings case, the Attorney-General ‘established
a review of past cases where a parent or carer had been convicted of killing an infant
under two in the past 10 years’. A total of 297 such cases were identified. The review
of these cases revealed 28 cases in which there was a cause for concern. The defence
solicitors, Criminal Cases Review Commission, and Court of Appeal were informed
of this.7 In addition to the 28 cases, a separate category consisting of 88 ‘shaken baby
cases’ was identified. Of these 88 cases, only three were identified as giving rise to cause
for concern.8
Previously, expert opinion evidence in criminal cases had also had a high profile owing
to its role in contributing to a number of major miscarriages of justice. Pre-eminent
among these was the case of Judith Ward, whose conviction of the murder of a number
of people by planting a bomb on a bus carrying service personnel and their families was
quashed by the Court of Appeal in 1992. The Court ‘identified the cause of the injustice
done to the appellant on the scientific side of the case as stemming from the fact that three
senior [government] forensic scientists . . . regarded their task as being to help the police.
They became partisan.’9
The Crown Court Study found that there was probably prosecution scientific evi-
dence in around a third of contested cases. In only around a quarter of cases in which
there was such evidence was it challenged by the defence. Overall, therefore, there was
a challenge by the defence to prosecution scientific evidence in under a tenth of all
contested cases.10
In civil cases11 expert evidence was made the subject of Part 35 of the Civil Procedure
Rules, as supplemented by the relevant Practice Direction.12 Following calls for aspects
of the practices and procedures applicable in civil cases to be adopted in criminal cases,13
Part  33 of the Criminal Procedure Rules14 was eventually introduced. Both Part  35
and Part 33, in the civil and criminal contexts respectively, will be explored in more
detail later.

7
  House of Lords Hansard, 21 Dec 2004:  Column 1658. See also The Review of Infant Death Cases
Following the Court of Appeal Decision in the Case of R v Cannings (2004) (2004).
8  The Review of Infant Death Cases: Addendum To Report—Shaken Baby Syndrome (2006).
9  R v Ward [1993] 2 All ER 577, 628.
10  M Zander and P Henderson, The Royal Commission on Criminal Justice: Crown Court Study (1993)

83–4, 86.
11  See generally P Botsford, ‘Knowledge Is Power’ (2008) 105(24) Law Society’s Gazette 20; D Dwyer, The

Judicial Assessment of Expert Evidence (2008); Expert Witness Institute (L Blom-Cooper (ed)), Experts in
the Civil Courts (2006).
12  See generally L Blom-Cooper, ‘Experts and Assessors:  Past, Present and Future’ (2002) 21 Civil

Justice Quarterly 341; D Dwyer, ‘The Role of the Expert under CPR Pt 35’ in D Dwyer (ed), The Civil
Procedure Rules Ten Years On (2009); G Edmond, ‘After Objectivity:  Expert Evidence and Procedural
Reform’ (2003) 25 Sydney Law Review 131; C Jackson, ‘The Uses and Abuses of Experts and their Evidence’
[2000] Journal of Personal Injury Litigation 19; M Solon, ‘Going Up a Gear’ (2009) 159 New Law Journal
1479. See also Civil Justice Council, Guidance for the Instruction of Experts in Civil Claims 2014 (2014).
Note, however, that ‘CPR Pt 35 is not a comprehensive and exclusive code regulating the admission of
expert evidence. It regulates the use of a particular category of expert evidence. . . . The courts have in
practice received expert evidence outside the confines of CPR Pt 35’: Rogers v Hoyle [2014] EWCA Civ
257, [2014] 3 WLR 148 at [63]–[64].
13  See, eg, G Wood, ‘Medical Experts Are Usurping the Jury’s Role’, The Times, 13 July 2004, Law, 8.
14  See generally C Pamplin, ‘Underwhelming Developments’ (2006) 156 New Law Journal 1082.
Admissibilit y 315

1  The Fact and Opinion Distinction

As indicated in the first paragraph of this chapter, the significance of a witness being
classified as an expert lies partly in the rule that an expert (unlike other witnesses)
may give evidence of opinion as well as of fact. It is however noteworthy that, although
treated in the law of evidence as fundamental, the distinction between ‘fact’ and ‘opinion’
may not withstand close scrutiny.15 Thayer wrote that ‘in a sense all testimony to matter
of fact is opinion evidence; ie, it is a conclusion formed from phenomena and mental
impressions’.16 To put it another way: ‘In the very basic sense that everything we imagine
we see, and everything we think we know, is our own personal reconstruction of sense-
data, everything is a matter of “opinion”.’17 Wigmore observed:
If . . . our notion of the supposed firm distinction between ‘opinion’ and ‘fact’ is that the
one is certain and sure, the other not, surely a just view of their psychological relations
serves to demonstrate that in strict truth nothing is certain. Or if we prefer the suggestion
of Sir G C Lewis that the test is whether ‘doubt can reasonably exist,’ then certainly it must
be perceived that the multiple doubts which ought to exist would exclude vast masses of
indubitably admissible testimony. Or if we prefer the idea that ‘opinion’ is inference and
fact is ‘original perception,’ then it may be understood that no such distinction can scien-
tifically be made, since the processes of knowledge and the sources of illusion are the same
for both. It is impossible, then (supposing it were desirable), to confine witnesses to some
fancied realm of ‘knowledge’ or ‘fact’ and to forbid them to enter the domain of ‘opinions’
or inferences. There are no such contrasted groups of certain and uncertain testimony,
and there never can be.18
Although we may accept these powerful arguments, it is true to say that in practice,
as will be seen later in this chapter, lawyers and the courts have a working common
understanding of matters of opinion on which only experts will be permitted to give
evidence.

2  Admissibility
The Court of Appeal has summarized the principles governing the admissibility of expert
opinion evidence as follows:
For expert evidence to be admissible, two conditions must be satisfied: first, that study
or experience will give a witness’s opinion an authority which the opinion of one not
so qualified will lack; and secondly the witness must be so qualified to express the
opinion. . . .
If these two conditions are met the evidence of the witness is admissible, although the
weight to be attached to his opinion must of course be assessed by the tribunal of fact.19

15  See generally D Dwyer, The Judicial Assessment of Expert Evidence (2008) Ch 2.
16  J B Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) 524.
17  P Roberts, ‘Tyres with a “Y”:  An English Perspective on Kumho Tire and Its Implications for the

Admissibility of Expert Evidence’ (1999) 1(2) International Commentary on Evidence.

18  J H Wigmore, Evidence in Trials at Common Law (Vol 7) (rev by J H Chadbourn, 1978) 16. See also C

A G Jones, Expert Witnesses: Science, Medicine, and the Practice of Law (1994) 103: ‘All statements of fact
are, to some degree, statements of conclusion and judgement.’
19  R v Luttrell [2004] EWCA Crim 1344, [2004] 2 Cr App R 31 at [32]–[33]. See generally M Redmayne,

Expert Evidence and Criminal Justice (2001) Chs 5 and 6.

316
Expert E vidence

This quotation reflects the fact that, although not often well articulated in the cases, there
are clearly two fundamental issues which underlie considerations of the admissibility
of expert opinion evidence. These may be referred to, in short, as the issues of necessity
and reliability. The first condition essentially encapsulates concerns relating to necessity
and the second concerns relating to reliability. The role of expert witnesses is ‘to furnish
the Judge or jury with the necessary scientific criteria for testing the accuracy of their
conclusions, so as to enable the Judge or jury to form their own independent judgment
by the application of these criteria to the facts proved in evidence’.20 Thus expert opinion
evidence is considered unnecessary where the trier of fact may be expected to have the
ability to form its opinion on the issue in question without assistance. To treat the trier
of fact to expert opinion evidence in such a situation would not only usurp the role of the
trier of fact, but also create the danger that the trier of fact would be too readily influenced
by that evidence and thus accord it undue weight.21
In civil proceedings, Rule 35.1 of the Civil Procedure Rules provides: ‘Expert evidence
shall be restricted to that which is reasonably required to resolve the proceedings.’22 Rule
35.4(1) provides: ‘No party may call an expert or put in evidence an expert’s report with-
out the court’s permission.’
The potentially strong influence on a jury in a criminal trial of apparently cogent expert
evidence adduced by the prosecution is undeniable.23 It is, therefore, only in those situ-
ations where the trier of fact may be expected to require the assistance of an expert that
such evidence should be admissible.
While the notion of necessity in this context may appear superficially attractive, it may
not withstand close scrutiny. As will be seen in the course of this chapter, whether the
trier of fact may be expected to be able to form its opinion on a particular issue without
the assistance of an expert is a question which is often inherently incapable of accurate
determination. There is, furthermore, empirical evidence suggesting that the tendency
of juries to accord undue weight to expert evidence may not be as strong as is popularly
thought.24 In any event, cogent expert testimony may be precisely the type of evidence
on which considerable weight should be placed by the trier of fact. What is really to be
guarded against, rather, is the placing of undue weight on expert evidence which may
cause an incorrect result to be reached in the case. This is the concern of what appears
to be the second criterion for admissibility, that of reliability. The law effectively requires
that expert opinion evidence be demonstrated to be sufficiently reliable to be admitted.

20  Davie v Edinburgh Magistrates 1953 SC 34, 40.

21  ‘In the case of expert witnesses the court is likely to lower its guard’: Cala Homes (South) Ltd v Alfred
McAlpine Homes East Ltd [1995] FSR 818, 843.
22  There is anecdotal evidence that this has been achieved (H Hallett, ‘Expert Witnesses in the Courts of

England and Wales’ (2005) 79 Australian Law Journal 288, 294): ‘As a civil trial judge I can say from my own
experience that the CPR seem to have had the desired effect. Expert evidence is generally restricted to cases
where it is essential and by the time a case comes on for trial the issues have usually narrowed significantly.
The culture that Lord Woolf wished to foster [through the CPR] seems to be developing without draconian
restrictions.’
23  Notably, 90% of jurors in the Crown Court Study found scientific evidence presented by expert wit-

nesses either ‘not at all difficult’ (56%) or ‘not very difficult’ (34%) to understand, with only 9% finding it
‘fairly difficult’, and 1% ‘very difficult’: M Zander and P Henderson, The Royal Commission on Criminal
Justice: Crown Court Study (1993) 206.
24 E J Imwinkelried, ‘The Next Step in Conceptualizing the Presentation of Expert Evidence as

Education: The Case for Didactic Trial Procedures’ (1997) 1(2) International Journal of Evidence and Proof
128, 134–6. Cf, however, House of Commons Science and Technology Committee, Forensic Science on Trial
(Seventh Report of Session 2004–05) (HC 96-I) (2005) [167]. See also M Coen and L Heffernan, ‘Juror
Comprehension of Expert Evidence: A Reform Agenda’ [2010] Criminal Law Review 195.
Admissibilit y 317

As the Court of Appeal has stated: ‘In each case it must be for the judge to decide whether
the issue is one on which the jury could be assisted by expert evidence, and whether the
expert tendered has the expertise to provide such evidence.’25 On the appropriateness of
holding a voir dire hearing to determine the issue of expertise, the Court of Appeal has
remarked:
We were not shown any English authority on the question of holding a voir dire to decide
whether a purported expert should be allowed to give evidence. In the vast majority of
cases it seems to us the judge will be able to make the decision from the written material
before him. There will be rare cases . . . where it will be necessary in order to do justice to
hold a voir dire . . .
A judge should be astute to avoid unnecessary satellite litigation which is likely to
increase expense and increase the length of the trial. This is perhaps particularly true of a
serious fraud case, where the expense and length will already inevitably be considerable.26
The extent to which the twin issues of necessity and reliability are adequately accounted
for in the law on the admissibility of expert opinion evidence is a question which ought to
underlie any consideration of the law in this area.

2.1  Statutory Provisions

Provision on the admissibility of expert opinion evidence is on occasion made expressly
by Parliament. Section 4 of the Obscene Publications Act 1959, for example, expressly
permits the admission of such evidence:
(1) Subject to subsection (1A) of this section a person shall not be convicted of an
offence . . . if it is proved that publication of the article in question is justified as being
for the public good on the ground that it is in the interests of science, literature, art
or learning, or of other objects of general concern. . . .
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or
other merits of an article may be admitted in any proceedings under this Act either
to establish or to negative the said ground.
Statutory provisions may also expressly declare the admission of expert opinion evi-
dence to be essential in particular situations. For example, section 1(1) of the Criminal
Procedure (Insanity and Unfitness to Plead) Act 1991 provides:
A jury shall not return a special verdict under section 2 of the Trial of Lunatics Act 1883
(acquittal on ground of insanity) except on the written or oral evidence of two or more
registered medical practitioners at least one of whom is duly approved.
In a similar vein, section 4(6) of the Criminal Procedure (Insanity) Act 1964 provides
that a court is not to make a finding of unfitness to plead ‘except on the written or oral
evidence of two or more registered medical practitioners at least one of whom is duly
approved’.27

25  R v Stockwell (1993) 97 Cr App R 260, 264.

26  R v G [2004] EWCA Crim 1240, [2004] 2 Cr App R 38 at [30]–[31].
27 See R v Ghulam [2009] EWCA Crim 2285, [2010] 1 WLR 891 at [16]: ‘In our judgment, notwithstand-

ing the unqualified wording of subsection (6), it does indeed refer to a determination that a person is unfit
to plead. It does not preclude a determination that a person is fit to plead in circumstances where there is not
the evidence of two or more registered medical practitioners, at least one of whom is duly approved. Indeed,
in our judgment the statute envisages that the written oral evidence of the two or more registered medical
practitioners would both be to the effect that the defendant is unfit to plead. It is difficult to believe, for
318
Expert E vidence

Psychiatric injury may constitute ‘actual bodily harm’ for the purpose of the offence
of assault occasioning actual bodily harm under section 47 of the Offences Against the
Person Act 1861. Although not expressly required by section 47, it has been held that, if
psychiatric injury were relied on as the basis of a section 47 prosecution, it is essential that
expert evidence be adduced. The Court of Appeal stated in R v Morris that, ‘in the absence
of psychiatric evidence supporting the prosecution case (1) that the victim’s symptoms
other than pain amounted to psychological illness or injury and (2) that the pains expe-
rienced were the result of the appellant’s (non-physical) assault, the case should not have
been allowed to go before the jury’.28

2.2  Mens Rea, Defences, and Credibility

To what extent is expert opinion evidence admissible on the issues of the mens rea of
the accused, defences raised by the accused, and the credibility of witnesses?

2.2.1  Mens Rea
The relevant principle governing the admissibility of expert evidence on the issue of
mens rea was stated in R v Chard:
one purpose of jury trials is to bring into the jury box a body of men and women who
are able to judge ordinary day-to-day questions by their own standards, that is, the
standards in the eyes of the law of theoretically ordinary reasonable men and women.
That is something which they are well able by their ordinary experience to judge for
themselves. Where the matters in issue go outside that experience and they are invited
to deal with someone supposedly abnormal, for example, supposedly suffering from
insanity or diminished responsibility, then plainly in such a case they are entitled to
the benefit of expert evidence. But where . . . they are dealing with someone who by
concession was on the medical evidence entirely normal, it seems to this Court abun-
dantly plain, on first principles of the admissibility of expert evidence, that it is not
permissible to call a witness, whatever his personal experience, merely to tell the jury
how he thinks an accused man’s mind—assumedly a normal mind—operated at the
time of the alleged crime with reference to the crucial question of what that man’s
intention was. 29
Chard was distinguished in R v Toner where it was considered that expert evidence on
the possible effect of mild hypoglycemia on the ability to form an intent was admissible,
just as medical evidence on the effect of a drug on the ability to form an intent would
be: ‘These are matters outside the ordinary experience of jurors. They cannot bring to bear
their own judgment without the assistance of expert evidence.’30
In R v Masih,31 the Court of Appeal considered that expert evidence would generally be
admissible on the issue of mens rea in the case of defendants coming into the class of per-
sons with an IQ of 69 and below. This was to enable the jury to be enlightened on a matter
which was presumably outside their experience. The Court of Appeal in R v Reynolds32
took a similar view.

example, that the statute would permit a defendant to be found unfit to plead in circumstances where there
was a consultant psychiatrist duly approved who was of the opinion that he was fit to plead, and a general
practitioner who was of the opinion he was unfit to plead.’
28  [1998] 1 Cr App R 386, 395. 29  (1971) 56 Cr App R 268, 270–1.
30  (1991) 93 Cr App R 382, 387. See also R v Coles [1995] 1 Cr App R 157.
31  [1986] Crim LR 395. 32  [1989] Crim LR 220.
Admissibilit y 319

2.2.2  Defences
In the classic, if controversial, case of R v Turner, the Court of Appeal stated:
Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from
any mental illness are likely to react to the stresses and strains of life. It follows that the
proposed evidence was not admissible to establish that the defendant was likely to have
been provoked.33
Similar views on the admissibility of expert opinion evidence on the issue of the par-
tial defence of provocation (since replaced, by the Coroners and Justice Act 2009, by
the partial defence of loss of control) were expressed by Lord Simon of Glaisdale in R v
Camplin.34 In a similar vein, the psychiatric evidence sought to be adduced in R v Hurst35
to support the defence of duress by threats, in circumstances where the defendant did not
suffer from psychiatric illness or disorder, was held to be inadmissible. It is important,
however, that cases like Turner and Hurst should not be read as positing a rule requiring
the automatic inadmissibility of all expert opinion evidence sought to be adduced in such
circumstances. Much must depend on the facts of the particular case, and the precise
purpose for which it is proposed to adduce the evidence. It is notable that the Court of
Appeal suggested in R v Ahluwalia that psychiatric evidence would be admissible where a
condition such as post-traumatic stress disorder was relied upon as the basis for the par-
tial defence of provocation.36 In a similar vein, ‘evidence of a disorder of a type properly to
be regarded as a mental illness or condition such as might render the defendant peculiarly
vulnerable to pressure or suggestibility’ is admissible on the issue of duress.37

2.2.3  Credibility
Immediately after the two sentences quoted above, in the text accompanying footnote 33,
the Court in Turner continued:
The same reasoning applies to its suggested admissibility on the issue of credibility. The
jury had to decide what reliance they could put upon the defendant’s evidence. He had to
be judged as someone who was not mentally disordered. This is what juries are empanelled
to do. The law assumes they can perform their duties properly. The jury in this case did not
need, and should not have been offered the evidence of a psychiatrist to help them decide
whether the defendant’s evidence was truthful.38

33  [1975] QB 834, 841–2. See generally R D Mackay, A M Colman, and P Thornton, ‘The Admissibility of

Expert Psychological and Psychiatric Testimony’ in A Heaton-Armstrong, E Shepherd, and D Wolchover

(eds), Analysing Witness Testimony:  A  Guide for Legal Practitioners and Other Professionals (1999); M
Redmayne, Expert Evidence and Criminal Justice (2001) Ch 6.
34  [1978] AC 705, 727. Thus, ‘problems can arise in directing the jury about the use of . . . psychiatric

evidence, when, as sometimes happens, both [the defences of diminished responsibility and provocation]
are run in tandem’: G J Durston, ‘Expert Opinion Evidence in Criminal Trials: A Review of the Current
Position’ (1996) 160 Justice of the Peace 837, 838.
35  [1995] 1 Cr App R 82.
36  [1992] 4 All ER 889, 898. See also the decision of the High Court of Australia in Osland v R [1998]

HCA 75, which appears to permit expert evidence where ‘battered woman syndrome’ is relied upon as the
basis of the defence of provocation or self-defence. See generally B A Hocking, ‘A Tale of Two Experts: The
Australian High Court Takes a Cautious Stand’ (2000) 64 Journal of Criminal Law 245.
37  R v Huckerby [2004] EWCA Crim 3251 at [103].
38  [1975] QB 834, 842. Lowery v R [1974] AC 85 was considered ‘to have been decided on its special facts.

We do not consider that it is an authority for the proposition that in all cases psychologists and psychiatrists
can be called to prove the probability of the accused’s veracity. If any such rule was applied in our courts,
trial by psychiatrists would be likely to take the place of trial by jury and magistrates. We do not find that
prospect attractive and the law does not at present provide for it’ ([1975] QB 834, 842).
320
Expert E vidence

Thus expert opinion evidence is, in general, inadmissible on the issue of a witness’s cred-
ibility.39 As an application of this principle,
the Crown cannot call a witness of fact and then, without more, call a psychologist or psy-
chiatrist to give reasons why the jury should regard that witness as reliable.
. . . if the defence propose to call an expert witness to say that a witness of fact for the
Crown should be regarded as unreliable due to some mental abnormality outwith the
jury’s experience, then, depending on the precise issue, it may be open to the Crown to
call an expert in rebuttal, or even (anticipating the defence expert) as part of the prosecu-
tion case. It may even be open to the Crown to rebut by expert evidence a case put only in
cross-examination that a prosecution witness is unreliable in a particular respect arising
from mental abnormality. Much may depend upon the nature of the abnormality and of
the cross-examination. If such evidence is admitted, great care would need to be taken to
restrict the expert opinion to meeting the specific challenge and not to allow it to extend
to ‘oath-helping’.40
Where the suggestion is that a witness is incapable of telling the truth because of mental
illness, medical41 evidence may be permitted:
Human evidence . . . is subject to many cross-currents such as partiality, prejudice,
self-interest and, above all, imagination and inaccuracy. Those are matters with which the
jury, helped by cross-examination and common sense, must do their best. But when a wit-
ness through physical (in which I include mental) disease or abnormality is not capable of
giving a true or reliable account to the jury, it must surely be allowable for medical science
to reveal this vital hidden fact to them . . . it must . . . be allowable to call medical evidence
of mental illness which makes a witness incapable of giving reliable evidence, whether
through the existence of delusions or otherwise.42
It may be doubted whether there really is a clear-cut distinction between lack of cred-
ibility as a result of incapacity to tell the truth because of mental illness, and lack of
credibility as a result of such factors as partiality, prejudice, self-interest, imagination,
or inaccuracy.
The Court of Appeal has, however, noted that in more recent times ‘there has been a
greater willingness to accept medical expert evidence on the issue of the credibility of a
witness’. That said, it is ‘necessary to take into account the importance of the evidence that
the witness gives. If the evidence of the witness is of little significance to the issues at the
trial, the admission of expert evidence is unlikely to be justified.’43 It is not essential for
the expert evidence to be based on an examination of the witness:
while, of course, the court will carefully scrutinise medical evidence before deciding
whether it should be admitted, the absence of an examination of a witness or defendant
concerned cannot be decisive in determining the admissibility of the expert evidence.

39  And see generally Re N (A Minor) [1996] 4 All ER 225; Re M and R (Minors) [1996] 4 All ER 239;

T Ward, ‘Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal
Trials’ (2009) 13 International Journal of Evidence and Proof 83. It is interesting to note that the reluctance
of English law to admit expert evidence on the issue of credibility has not been mirrored in all jurisdic-
tions; see, eg, the discussion of the practice in Germany by J Hunter and K Cronin, Evidence, Advocacy
and Ethical Practice:  A  Criminal Trial Commentary (1995) 363–4. For a US perspective see A B Poulin,
‘Credibility: A Fair Subject for Expert Testimony?’ (2007) 59 Florida Law Review 991.
40  R v Robinson [1994] 3 All ER 346, 352. 41  See also R v MacKenney (1981) 76 Cr App R 271.
42  Toohey v Metropolitan Police Commissioner [1965] AC 595, 608 per Lord Pearce.
43  R v Pinfold [2003] EWCA Crim 3643, [2004] 2 Cr App R 5 at [15]. See generally P Roberts, ‘Towards the

Principled Reception of Expert Evidence of Witness Credibility in Criminal Trials’ (2004) 8 International
Journal of Evidence and Proof 215.
Admissibilit y 321

The Court has to determine whether the evidence could be considered credible evidence
by the jury as to an abnormality from which the witness suffered at the time of giving
evidence and which might mean that the jury would not attach the weight it would other-
wise do to the witness’s evidence. The absence of an examination by the expert goes to the
weight to be attached to the expert’s opinion and not to the admissibility of that opinion.
What a court must be on its guard against is any attempt to detract from the jury’s task
of finding for themselves what evidence to believe. The court should therefore not allow
evidence to be placed before the jury which does not allege any medical abnormality as
the basis for the evidence of a witness being approached with particular caution by the
jury. Ultimately, it remains the jury’s task to decide for themselves whether they believe a
witness’ testimony.44

2.2.4  Evaluation
The general approach of the courts to the admissibility of expert opinion evidence on the
issues of the mens rea of the accused, defences raised by the accused, and the credibility of
witnesses, may be easily criticized. As Mackay and Colman argue:
In decisions regarding admissibility, the crucial question ought to be whether or not the
expert evidence could make a significant contribution to the jury’s understanding of the
accused’s state of mind. This must depend, of course, on the judge’s assessment of the pro-
bative value of the evidence. If the expert evidence points to an abnormal state of mind or
personality of any degree on the defendant’s part at the time of the alleged offence, then we
submit that the court ought to exercise its discretion in favour of admitting the evidence.
There are many abnormal states of mind brought about by situational forces . . . which,
although they do not involve mental disorders in any medical sense, none the less lie
demonstrably beyond the understanding of ordinary people, and in relation to which
expert evidence could therefore contribute significantly to a jury’s understanding. . . . evi-
dence on such matters ought in our view to be admitted, for to exclude it might deprive
the jury of evidence that could help them to understand the defendant’s state of mind at
the material time.45
That the orthodox approach of the English courts as encapsulated in Turner cannot with-
stand close scrutiny has been recognized in the High Court of Australia:
[The approach] assumes that ‘ordinary’ or ‘normal’ has some clearly understood mean-
ing and, as a corollary, that the distinction between normal and abnormal is well recog-
nized. Further, it assumes that the commonsense of jurors is an adequate guide to the
conduct of people who are ‘normal’ even though they may suffer from some relevant
disability. And it assumes that the expertise of psychiatrists (or, in the present case, psy-
chologists) extends only to those who are ‘abnormal’. None of these assumptions will
stand close scrutiny.46
The view has been taken in the High Court of Australia that, while the possibility of
impaired memory as a consequence of alcoholism or substance abuse ‘is a matter well

44  R v Pinfold [2003] EWCA Crim 3643, [2004] 2 Cr App R 5 at [16]. See also R v Clark [2006] EWCA

Crim 231: expert evidence may be admissible on the issue of whether a complainant’s ‘memory’ may be the
product of hypnotherapy (ie a ‘false memory’ induced by hypnotherapy) rather than an accurate recollec-
tion of what occurred.
45  R D Mackay and A M Colman, ‘Excluding Expert Evidence: A Tale of Ordinary Folk and Common

Experience’ [1991] Criminal Law Review 800, 809 (italics in original).

46  Murphy v R (1989) 167 CLR 94, 111 per Mason CJ and Toohey J. See generally J Hunter and J Bargen,

‘Diminished Responsibility: “Abnormal” Minds, Abnormal Murderers and what the Doctor Said’ in S M H
Yeo (ed), Partial Excuses to Murder (1990).
322
Expert E vidence

within the experience of ordinary persons’, ‘the experience of ordinary persons is not
such that most will know the mental state of a person who suffers some mental impair-
ment in consequence of alcoholism or substance abuse’.47 Equally, while mere anti­
social behaviour may well be within the experience of ordinary persons, this is not true
of an antisocial personality disorder which renders the person in question inherently less
truthful than the average person.48
Even in England and Wales, however, there are signs that the Court of Appeal’s ques-
tionable remarks in Turner are being gradually diluted. In R v Strudwick, for example, the
Court of Appeal observed:
It is not suggested here that the appellant is suffering from a mental illness, but that is not
in itself conclusive against the admission of this evidence. The law is in a state of develop-
ment in this area. There may well be other mental conditions about which a jury might
require expert assistance in order to understand and evaluate their effect on the issues in
a case.49
Expert evidence concerning memory, too, may well be more readily admissible than was
the case previously. In R v X (Childhood Amnesia) the Court of Appeal held a psycholo-
gist’s evidence on early childhood memory to be admissible: ‘[Such] evidence would be
relevant . . . in those rare cases in which the complainant provides a description of very
early events which appears to contain an unrealistic amount of detail. That, in the expe-
rience of this court, does not happen often. . . . A  witness’s ability to remember events
will . . . ordinarily be well within the experience of jurors.’50 The Court of Appeal sub-
sequently held in R v S, distinguishing X, that ‘it is difficult to see how [such] expert
evidence can properly be tendered to establish a justifiable criticism of an adult witness
who says that she suffered abuse throughout her childhood, which must have begun at too
early an age for her to remember the first occasion’.51
It is to be noted that the expert opinion evidence sought to be adduced on matters
such as mens rea, defences, and credibility (and, relatedly, memory) is often exculpatory
evidence sought to be introduced by defendants in their defence. This ought, one might
argue, to be a factor favouring the admissibility of the evidence.

2.3  Confessions
Similar principles are applied in determining whether the jury in a criminal case should
be permitted to hear expert opinion evidence on the issue of the reliability of a confes-
sion.52 In R v Weightman, such evidence was held to be inadmissible on the basis that the
defendant, although ‘histrionic, theatrical and likely to say things to draw attention to
herself’, did not have a personality ‘beyond the experience of normal non-medical people’.
The jury, it was said, ‘would not have been helped by having a psychiatrist talking about
“emotional superficiality” and “impaired capacity to develop and sustain deep or endur-
ing relationships”’.53 Where, however, the evidence indicates a mental disorder, different
considerations apply. The Court of Appeal noted in late 2004 that ‘this court has long
recognised an exception in the case of “out of court” confessions where there is evidence

47  Farrell v R [1998] HCA 50 at [11] (italics added). 48  Farrell v R [1998] HCA 50 at [12].
49  (1993) 99 Cr App R 326, 332.
50  [2005] EWCA Crim 1828, [2006] 1 Cr App R 10 at [47]–[48].
51  [2006] EWCA Crim 1404, [2007] 2 All ER 974 at [29].
52  See generally G Gudjonsson, ‘Disputed Confessions and Miscarriages of Justice in Britain:  Expert

Psychological and Psychiatric Evidence in the Court of Appeal’ (2006) 31 Manitoba Law Journal 489.
53  (1990) 92 Cr App R 291, 297.
Admissibilit y 323

of a disorder of a type properly to be regarded as a mental illness or condition such as

might render the defendant peculiarly vulnerable to pressure or suggestibility’.54 Thus,
the expert evidence of a psychiatrist or a psychologist may properly be admitted if it is to
the effect that a defendant is suffering from a condition not properly described as mental
illness, but from a personality disorder so severe as properly to be categorised as mental
disorder. . . . such evidence is admissible on the issue whether what a defendant has said in
a confession or admission was reliable and therefore likely to have been true.
We emphasise that the occasions on which such evidence will properly be admissible
will probably be rare. This decision is not to be construed as an open invitation to every
defendant who repents of having confessed and seeks to challenge the truth of his confes-
sion to seek the aid of a psychiatrist.55
In R v O’Brien56 the Court of Appeal gave detailed consideration to the admissibility
of expert evidence on the issue of whether a mental disorder might render a confession
unreliable. The Court noted that ‘an anti social personality disorder does not necessarily
mean that the defendant is a compulsive liar or fantasist or that his confession . . . might be
unreliable’. There must, the Court thought, be
defined limits for the case in which expert evidence . . . may be used. First the abnormal
disorder must not only be of the type which might render a confession . . . unreliable, there
must also be a very significant deviation from the norm shown. . . . Second, there should be
a history predating the making of the admissions . . . which is not based solely on a history
given by the subject, which points to or explains the abnormality or abnormalities.
If such evidence is admitted, the jury must be directed that they are not obliged to
accept such evidence. They should consider it if they think it right to do so, as throwing
light on the personality of the defendant and bringing to their attention aspects of that
personality of which they might otherwise have been unaware.57
Similar principles apply in relation to the admissibility of expert opinion evidence in
a voir dire hearing held to determine whether a confession should be excluded from
evidence.58

2.4  Psychological Autopsies

R v Gilfoyle concerned the admissibility of evidence of a ‘psychological autopsy’ in a
prosecution for murder in which the defendant contended that the victim, his wife, had
committed suicide. The evidence consisted of the opinion of a psychologist who, after
considering, inter alia, the ‘suicide note’, diary, and other documents written by the
deceased, and the views of the defendant and his family, concluded that there was ‘con-
vincing support for the deceased having taken her own life’.59 Holding this evidence to be
inadmissible, the Court noted:
The use of psychological profiling as an aid to police investigation is one thing, but its
use as a means of proof in court is another. Psychiatric evidence as to the state of mind

54  R v Huckerby [2004] EWCA Crim 3251 at [103]. 55  R v Ward [1993] 2 All ER 577, 641.
56  The Times, 16 Feb 2000 (transcript from Smith Bernal).
57  The Times, 16 Feb 2000 (transcript from Smith Bernal).
58 See R v Everett [1988] Crim LR 826; R v Silcott, The Times, 9 Dec 1991; R v Heaton [1993] Crim LR 593

(expert opinion evidence inadmissible because there was no suggestion of mental handicap or retardation,
and the defendant was within the normal range of intelligence albeit towards the lower end of it); R v Walker
[1998] Crim LR 211.
59  [2001] 2 Cr App R 5 at [23].
324
Expert E vidence

of a defendant, witness or deceased falling short of mental illness may . . . be admissible in

some cases when based for example, on medical records and/or recognised criteria . . . But
the present academic status of psychological autopsies is not . . . such as to permit them to
be admitted as a basis for expert opinion before a jury.
The Court ‘very much doubt[ed] whether assessing levels of happiness or unhappiness is
a task for an expert rather than jurors and none of the points which he makes about the
“suicide” notes is outwith the experience of a jury’.60

2.5  Obscenity
In R v Stamford, where the defendant was charged with posting packets containing
indecent articles, the Court of Appeal held that ‘evidence is not admissible on the issue
whether a particular article is indecent or not, or whether it is obscene or not. That issue
is a matter entirely for the jury, and it is one which they must decide without . . . the
assistance of persons who may have views on the matter, or might be able to speak
as to the effect on them of the article in question.’61 This may be compared, however,
with the earlier case of DPP v A & BC Chewing Gum Ltd,62 where the defendant was
charged with publishing for gain some obscene cards, which were sold with packets
of bubble gum. Evidence of experts in child psychiatry about what effect the cards
would be likely to have on children was held by the Divisional Court to be admissible.
The Court thought that, if adults had been at issue, expert opinion evidence might
have been unnecessary, but in the case of children such evidence was admissible,
because the trier of fact would require all the assistance which it could get in consid-
ering the effect of the publication on children. The authority of this case is perhaps
somewhat doubtful:  the Court of Appeal in Stamford described it as ‘a very special
case’,63 and doubts about it were expressed by Viscount Dilhorne in DPP v Jordan.64
More recently, however, it has been referred to seemingly approvingly by the Court of
Appeal:
In cases involving children, expert medical and psychiatric evidence from paediatri-
cians and allied disciplines is often quite indispensable to the court. As Lord Parker
CJ said in DPP v A & BC Chewing Gum Ltd [1967] 2 All ER 504 at 506, [1968] 1 QB 159
at 165, when dealing with children, the court needs ‘all the help [it] can get’. But that
dependence in no way compromises the fact that the final decision in the case is the
judge’s and his alone.65

2.6  Age
At issue in R v Land66 was a prosecution under section 1(1)(c) of the Protection of Children
Act 1978 for possessing indecent photographs of children. At the time, a ‘child’ for the
purposes of this provision was either a person under 16 or a person who appeared, from

60  [2001] 2 Cr App R 5 at [25]. 61  [1972] 2 QB 391, 398. 62  [1968] 1 QB 159.
63  [1972] 2 QB 391, 397.
64  [1977] AC 699, 722. See also F E Raitt, ‘A New Criterion for the Admissibility of Scientific Evidence: The

Metamorphosis of Helpfulness’ (1998) 1 Current Legal Issues 153, 159: ‘The judicial reasoning [in A & BC
Chewing Gum Ltd] is fallacious. If adult jurors are deemed not to need expert assistance in relation to the
effects of obscene pictures on adults on the grounds that, as adults themselves, they are fully cognizant with
the effects of obscenity on all adults, then it is illogical to argue for an exception in the case of children. For
indeed all adult jurors have also experienced childhood.’
65  Re M and R (Minors) [1996] 4 All ER 239, 249. 66  [1998] 1 Cr App R 301.
Admissibilit y 325

the evidence as a whole, to have been under 16 at the material time. The Court of Appeal
held expert evidence to be inadmissible on the question whether the prosecution had
established that the person in the photograph was under 16:
The purpose of expert evidence is to assist the court with information which is outside
the normal experience and knowledge of the judge or jury. Perhaps the only certainty
which applies to the problem in this case is that each individual reaches puberty in his or
her own time. For each the process is unique and the jury is as well placed as an expert to
assess any argument addressed to the question whether the prosecution has established
as it must before there can be a conviction, that the person depicted in the photograph is
under 16 years old.67
It has been noted that, when ‘assessing a child’s age, . . . it is surely not inconceivable that
in a difficult case, perhaps involving children of backgrounds unfamiliar to the jury, an
expert’s evidence might prove of assistance, and it is perhaps questionable whether the
court should have expressed its view on the inadmissibility of such evidence in quite such
categorical terms’.68

2.7  DNA Evidence

DNA evidence69 can be an extremely powerful tool in the prosecutorial armoury. The
potential that such evidence may be misused is however (or perhaps consequently) very
considerable. In R v Doheny the Court of Appeal provided detailed guidance on the issue
of DNA evidence. It is worth quoting extensively from the judgment:
When a criminal leaves a stain of blood or semen at the scene of the crime it may prove
possible to extract from that crime stain sufficient sections of DNA to enable a compari-
son to be made with the same sections extracted from a sample of blood provided by the
suspect. . . .
It is easy, if one eschews rigorous analysis, to draw [a conclusion like the following]:
1. Only one person in a million will have a DNA profile which matches that of the
crime stain.
2. The defendant has a DNA profile which matches the crime stain.
3. Ergo there is a million to one probability that the defendant left the crime stain and
is guilty of the crime.

67  [1998] 1 Cr App R 301, 306.

68  S Doran, J Jackson, and K Quinn, ‘Evidence’ [1998] All ER Annual Review 225, 232.
69  See generally G Cooke, ‘Are We Still Mis-Using DNA Evidence?’ [2000] 3 Archbold News 4; I W

Evett, L A Foreman, G Jackson, and J A Lambert, ‘DNA Profiling: A Discussion of Issues Relating to the
Reporting of Very Small Match Probabilities’ [2000] Criminal Law Review 341; J Gans, ‘Ozymandias on
Trial: Wrongs and Rights in DNA Cases’ in P Roberts and J Hunter (eds), Criminal Evidence and Human
Rights: Reimagining Common Law Procedural Traditions (2012); M Goode, ‘Some Observations on Evidence
of DNA Frequency’ (2002) 23 Adelaide Law Review 45; B Mahendra, ‘The Lawyer’s Guide to DNA Evidence
in Criminal Cases’ (2002) 152 New Law Journal 1110; M Naughton and G Tan, ‘The Need for Caution in
the Use of DNA Evidence to Avoid Convicting the Innocent’ (2011) 15 International Journal of Evidence
and Proof 245; A Roth, ‘Safety in Numbers? Deciding When DNA Alone is Enough to Convict’ (2010)
85 New  York University Law Review 1130; A Semikhodskii, ‘Spiral of Success’ [Nov 2005] Counsel 41; S
Watson, ‘One in a Billion’ (2004) 148 Solicitors’ Journal 335; R Wheate, ‘The Importance of DNA Evidence to
Juries in Criminal Trials’ (2010) 14 International Journal of Evidence and Proof 129; Home Office, DNA: 21st
Century Crime Fighting Tool (2003); O Sallavaci, The Impact of Scientific Evidence on the Criminal Trial: The
Case of DNA Evidence (2014); A Semikhodskii, Dealing with DNA Evidence (2007).
326
Expert E vidence

Such reasoning . . . is fallacious and it has earned the title of ‘The Prosecutor’s Fallacy’. . . .
Taking our example, the prosecutor’s fallacy can be simply demonstrated. If one per-
son in a million has a DNA profile which matches that obtained from the crime stain,
then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that char-
acteristic. If no fact is known about the Defendant, other than that he was in the United
Kingdom at the time of the crime the DNA evidence tells us no more than that there is a
statistical probability that he was the criminal of 1 in 26.
The significance of the DNA evidence will depend critically upon what else is known
about the suspect. If he has a convincing alibi at the other end of England at the time
of the crime, it will appear highly improbable that he can have been responsible for the
crime, despite his matching DNA profile. If, however, he was near the scene of the crime
when it was committed, or has been identified as a suspect because of other evidence
which suggests that he may have been responsible for the crime, the DNA evidence
becomes very significant. The possibility that two of the only 26 men in the United
Kingdom with the matching DNA should have been in the vicinity of the crime will
seem almost incredible and a comparatively slight nexus between the defendant and the
crime, independent of the DNA, is likely to suffice to present an overall picture to the
jury that satisfies them of the defendant’s guilt. . . .
When the scientist gives evidence it is important that he should not overstep the line
which separates his province from that of the jury.
He will properly explain to the jury the nature of the match (‘the matching DNA
characteristics’) between the DNA in the crime stain and the DNA in the blood sample
taken from the defendant. He will properly, on the basis of empirical statistical data,
give the jury the random occurrence ratio—the frequency with which the matching
DNA characteristics are likely to be found in the population at large. Provided that
he has the necessary data, and the statistical expertise, it may be appropriate for him
then to say how many people with the matching characteristics are likely to be found
in the United Kingdom—or perhaps in a more limited relevant sub-group, such as, for
instance, the caucasian, sexually active males in the Manchester area.
This will often be the limit of the evidence which he can properly and usefully give.
It will then be for the jury to decide, having regard to all the relevant evidence, whether
they are sure that it was the defendant who left the crime stain, or whether it is possible
that it was left by someone else with the same matching DNA characteristics.
The scientist should not be asked his opinion on the likelihood that it was the defendant
who left the crime stain, nor when giving evidence should he use terminology which may
lead the jury to believe that he is expressing such an opinion. . . .
When the judge comes to sum-up, the jury are likely to need careful directions
in respect of any issues of expert evidence and guidance to dispel any obfuscation
that may have been engendered in relation to areas of expert evidence where no real
issue exists. The judge should explain to the jury the relevance of the random occur-
rence ratio in arriving at their verdict and draw attention to the extraneous evidence
which provides the context which gives that ratio its significance, and that which
conflicts with the conclusion that the defendant was responsible for the crime stain.
In so far as the random occurrence ratio is concerned, a direction along these lines
may be appropriate, although any direction must always be tailored to the facts of the
particular case:

‘Members of the jury, if you accept the scientific evidence called by the Crown, this
indicates that there are probably only four or five white males in the United Kingdom
from whom that semen stain could have come. The defendant is one of them. If that is
the position, the decision you have to reach, on all the evidence, is whether you are sure
Admissibilit y 327

that it was the defendant who left that stain or whether it is possible that it was one of
that other small group of men who share the same DNA characteristics.’ 70
The Court of Appeal remarked subsequently that,
[in the] matter of DNA evidence, which is nearly always important, judges should con-
sider with great care the way in which they present the scientific evidence to the jury.
They should not present mere speculative possibilities which, although they cannot be
scientifically eliminated, are not supported by any positive evidence in a way which goes
far to destroy the common-sense force of scientific evidence which defendants can genu-
inely rely upon.71
At issue in R v Reed72 was the extent to which evidence relating to the ‘transferability’ of
DNA could be supplied by the process of analysing and interpreting minute quantities of
DNA (Low Template DNA) known as the Low Copy Number (LCN) process. The Court
of Appeal
consider[ed] that the science is sufficiently reliable for it to be within the competence of
a forensic science expert to give admissible evidence evaluating the possibilities of trans-
fer in DNA cases where the amount is over 200 picograms and when there is a sufficient
evidential basis from the profiles and other material . . . for it to be done. . . . it is difficult
to envisage the circumstances being set out in a protocol or defined by a set of rules . . .,
because the circumstances in which such evidence can properly be given are likely to be so
variable. It is therefore essential . . . that the court exercise a firm degree of control over the
admissibility of this type of evidence . . . The evidence on the possibilities and the evalua-
tion must be clearly set out in full in the terms in which it is to be given. Where there is a
challenge to its admissibility, the court must rule on the issue of admissibility in advance,
or at the outset of the trial.73
The Court of Appeal subsequently clarified in R v C that ‘profiles obtained from less than
200 picograms can be reliable. It is reliability that is the issue, not the quantity, though
plainly the quantity is relevant’.74
At issue in R v Dlugosz was
expert DNA evidence . . . where the evidence was low-template DNA evidence and the
DNA derived from a mixed sample to which at least two or three had contributed. In each
case, 19 or 20 of the components of the appellant’s DNA had been present in the mixture
but the experts were unable to give a random match probability.75

70  [1997] 1 Cr App R 369, 371–5. See also Pringle v R [2003] UKPC 9 at [19]. See the critique of Doheny
by M Redmayne, ‘Presenting Probabilities in Court: The DNA Experience’ (1997) 1 International Journal
of Evidence and Proof 187, 209 ff. See also K Hunter, ‘A New Direction on DNA?’ [1998] Criminal Law
Review 478; M Redmayne, ‘Appeals to Reason’ (2002) 65 Modern Law Review 19; V Rondinelli, ‘Three
Card Monty: Presenting DNA Statistical Evidence to Juries’ (2002) 3 Criminal Reports (6th) 52.
71  R v Mitchell [2004] EWCA Crim 1928 at [16]. See also C G G Aitken and F Taroni, ‘Fundamentals of

Statistical Evidence—A Primer for Legal Professionals’ (2008) 12 International Journal of Evidence and
Proof 181; G Cooke, ‘More Twists in the DNA Saga’ [2006] 9 Archbold News 4; K Squibb-Williams, ‘The New
DNA Guidance’ (2004) 154 New Law Journal 1693.
72  [2009] EWCA Crim 2698, [2010] 1 Cr App R 23. See generally D Bentley and P Lownds, ‘Low Template

DNA’ [2011] 1 Archbold Review 6; A Jamieson, ‘LCN DNA Analysis and Opinion on Transfer: R v Reed and
Reed’ (2011) 15 International Journal of Evidence and Proof 161.
73  [2009] EWCA Crim 2698, [2010] 1 Cr App R 23 at [122].
74  [2010] EWCA Crim 2578, [2011] 3 All ER 509 at [27].
75  [2013] EWCA Crim 2, [2013] 1 Cr App R 32 at [1]‌.
328
Expert E vidence

The Court of Appeal thought that,

provided it is made clear to the jury the very limited basis upon which an evaluation
can be made without a statistical database, a jury can be assisted in its consideration
of the evidence by an expression of an evaluative opinion by the experts. We consider
that on the materials with which we have been provided, there may be a sufficiently
reliable scientific basis on which an evaluative opinion can be expressed in cases, pro-
vided the expert has sufficient experience (which must be set out in full detail in the
report) and the profile has sufficient features for such an opinion to be given. If the
admissibility is challenged, the judge must, in the present state of this science, scru-
tinise the experience of the expert and the features of the profile so as to be satisfied
as to the reliability of the basis on which the evaluative opinion is being given. If the
judge is satisfied and the evidence is admissible, it must then be made very clear to
the jury that the evaluation has no statistical basis. It must be emphasised that the
opinion expressed is quite different from the usual DNA evidence based on statistical
match probability. It must be spelt out that the evaluative opinion is no more than an
opinion based upon (the expert’s) experience which should then be explained. It must
be stressed that, in contrast to the usual type of DNA evidence, it is of more limited
assistance.76

2.8  Evidence of Probabilities

The Court of Appeal has disapproved of attempts to lead evidence of Bayes’ Theorem77
before a jury. Very briefly, this involves a jury being invited to assign a numerical value to
the likelihood that each particular item of evidence suggests that the defendant is guilty,
and by multiplying these individual figures together to determine the overall likelihood
of guilt. In R v Adams the Court of Appeal remarked:
the attempt to determine guilt or innocence on the basis of a mathematical formula,
applied to each separate piece of evidence, is simply inappropriate to the jury’s task.
Jurors evaluate evidence and reach a conclusion not by means of a formula, math-
ematical or otherwise, but by the joint application of their individual common
sense and knowledge of the world to the evidence before them. . . . to introduce Bayes
Theorem, or any similar method, into a criminal trial plunges the jury into inappro-
priate and unnecessary realms of theory and complexity deflecting them from their
proper task.78

76  [2013] EWCA Crim 2, [2013] 1 Cr App R 32 at [24]. See, however, H Devlin, ‘Convictions at Risk as

Home Office Admits Errors in DNA Evidence’, The Times, 24 Sept 2014 (online); H Devlin and F Gibb,
‘Juries Need Forensics Lessons, Warn Judges’, The Times, 3 Nov 2014 (online); Forensic Science Regulator,
Draft Guidance: Cognitive Bias Effects Relevant to Forensic Science Examinations (2014) [9.2.7].
77  See generally D Hodgson, ‘A Lawyer Looks at Bayes’ Theorem’ (2002) 76 Australian Law Journal

109; C Jowett, ‘Sittin’ in the Dock with the Bayes’ (2001) 151 New Law Journal 201; A Ligertwood,
‘Avoiding Bayes in DNA Cases’ (2003) 77 Australian Law Journal 317; A Pundik, ‘The Epistemology of
Statistical Evidence’ (2011) 15 International Journal of Evidence and Proof 117; M Redmayne, ‘Objective
Probability and the Assessment of Evidence’ (2003) 2 Law, Probability and Risk 275; R Allen and M
Redmayne (eds), ‘Bayesianism and Juridical Proof ’ (1997) 1 International Journal of Evidence and
Proof: Special Issue.
78  [1996] 2 Cr App R 467, 481, 482. See also R v Doheny [1997] 1 Cr App R 369, 374–5 and R v Adams (No 2)

[1998] 1 Cr App R 377, 384–5. On Adams and Adams (No 2), see generally D Balding, ‘Probable Cause?’, The
Times Higher Education Supplement, 24 Oct 1997, 23; B Robertson and T Vignaux, ‘Explaining Evidence
Logically’ (1998) 148 New Law Journal 159; B Steventon, ‘Statistical Evidence and the Courts—Recent
Developments’ (1998) 62 Journal of Criminal Law 176.
Admissibilit y 329

In R v Clark,79 expert evidence was presented to the effect that, because there was a one in
8,543 chance of an infant within a family dying as a result of SIDS (sudden infant death
syndrome, or ‘cot death’), the probability of two infants in the same family dying as a result
of SIDS was accordingly about one in 73 million.80 It was also said that, with about 700,000
live births annually in Great Britain, this might be expected to occur about once every
100 years.81 The presentation of this evidence was disapproved by the Court of Appeal:
Inherent in the evidence were dangers. The jury were required to return separate ver-
dicts on the two counts but the 1 in 73 million figure encouraged consideration of the
two counts together as a package. If the jury concluded that one or other death was not a
SIDS case (whether from natural causes or from unnatural causes), then the chance that
the other child’s death was a SIDS case was 1 in 8,543 and the 1 in 73 million figure was
wholly irrelevant.
In any event, juries know from their own experience that cot deaths are rare. The 1 in 8,543
figure can do nothing to identify whether or not an individual case is one of those rare cases.
Generally juries would not need evidence to tell them that two deaths in a family are
much rarer still. Putting the evidence of 1 in 73 million before the jury with its related
statistic that it was the equivalent of a single occurrence of two such deaths in the same
family once in a century was tantamount to saying that without consideration of the rest
of the evidence one could be just about sure that this was a case of murder.82
But this would be an erroneous conclusion because the particular facts which produce a
first SIDS death in a family may also be an operative factor in relation to a second SIDS
death. It would be quite wrong therefore to apply statistical findings relating to the popu-
lation as a whole to a family which has already suffered one SIDS death.
Certainly, empirical research has demonstrated that the assessment of probabilities
causes real problems for lawyers, even those who have received considerable amounts of
formal mathematical education.83
Subsequently, in R v Anthony, the Court of Appeal made the following observations:
It is perhaps necessary to emphasise that we have no difficulty in understanding the
proposition that nowadays two infant deaths from natural causes in the same family is a
rare occurrence. The question is what safe inference, if any, may be drawn from that fact.
It seems to us that no inference can safely be drawn without simultaneously giving full
weight to the additional rarity that a mother would act so unnaturally as to smother two
of her babies. We acknowledge that this catastrophe sometimes happens, but, unless that
second fact is given equal weight with the first, any inference based on the first taken in
isolation from the second is likely to be flawed.84
In R v T the Court of Appeal considered that ‘an expert footwear mark examiner
can . . . in appropriate cases use his experience to express a more definite evaluative

79  [2003] EWCA Crim 1020, [2003] 2 FCR 447. See generally C Aitken, ‘Conviction by Probability?’

(2003) 153 New Law Journal 1153; D Dwyer, ‘The Duties of Expert Witnesses of Fact and Opinion: R v Clark
(Sally)’ (2003) 7 International Journal of Evidence and Proof 264.
80  1/8,543 × 1/8,543 = 1/72,982,849. 81  73,000,000 ÷ 700,000 = 104 approximately.
82  [2003] EWCA Crim 1020, [2003] 2 FCR 447 at [173]–[175].
83  P Hawkins and A Hawkins, ‘Lawyers’ Probability Misconceptions and the Implications for Legal

Education’ (1998) 18 Legal Studies 316. The decisions of the Court of Appeal in Adams and Adams (No
2) may be compared with the classic Californian case of People v Collins 438 P 2d 33 (1968), where the
Supreme Court of California was less dismissive than the English Court of Appeal of the concept of evi-
dence of mathematical probability, but found on the facts of the case that such evidence had been improp-
erly introduced.
84  [2005] EWCA Crim 952 at [77].
330
Expert E vidence

opinion where the conclusion is that the mark “could have been made” by the footwear.
However no likelihood ratios or other mathematical formula should be used in reaching
that judgment’.85

2.9  Foreign Law
Proof of the substance of foreign law is treated as a matter of expert evidence, in contrast
with English law which is the subject of argument by counsel and which the judge is pre-
sumed to know. The Court of Appeal has noted:
In our judgment, the function of the expert witness on foreign law can be summarised as
follows:
(1) to inform the court of the relevant contents of the foreign law; identifying statutes
or other legislation and explaining where necessary the foreign court’s approach to
their construction;
(2) to identify judgments or other authorities, explaining what status they have as
sources of the foreign law; and
(3) where there is no authority directly in point, to assist the English judge in making
a finding as to what the foreign court’s ruling would be if the issue was to arise for
decision there.
The first and second of these require the exercise of judgment in deciding what the issues
are and what statutes or precedents are relevant to them, but it is only the third which gives
much scope in practice for opinion evidence, which is the basic role of the expert witness.
And it is important, in our judgment, to note the purpose for which the evidence is given.
This is to predict the likely decision of a foreign court, not to press upon the English judge
the witness’s personal views as to what the foreign law might be.86

2.10  Further Illustrations

Keeping in mind the twin issues of necessity and reliability, a number of further illustra-
tions of the courts’ approach to the admissibility of expert evidence may now be pro-
vided. In R v Inch87 the defendant was accused of wounding the victim by striking him
with a martial arts instrument. His defence was that the wound was caused when the
victim head-butted him. At issue was the admissibility in evidence of the opinion of a
medical orderly, who had attended the victim, that the wound, because of its depth and
shape, had been caused by a blow from an instrument rather than by a collision of heads.
The Courts-Martial Appeal Court held that this evidence was inadmissible: any evidence
about the nature of the wound ought to have been given by someone qualified to express
a professional opinion.

85  [2010] EWCA Crim 2439, [2011] 1 Cr App R 9 at [95]. See generally G S Morrison, ‘The Likelihood-Ratio

Framework and Forensic Evidence in Court: A Response to R v T’ (2012) 16 International Journal of Evidence

and Proof 1; M Redmayne, P Roberts, C Aitken, and G Jackson, ‘Forensic Science Evidence in Questions’
[2011] Criminal Law Review 347; P Roberts, C Aitken, G Jackson, and M Redmayne, ‘When the Numbers
Count’ (2011) 175 Criminal Law and Justice Weekly 304; P Roberts, C Aitken, G Jackson, and M Redmayne,
‘When the Numbers Count—Part  2’ (2011) 175 Criminal Law and Justice Weekly 319; B Robertson,
G A Vignaux, and C E H Berger, ‘Extending the Confusion about Bayes’ (2011) 74 Modern Law Review 444;
A Wilson, ‘Away from the Numbers: Opinion in the Court of Appeal’ (2011) 75 Journal of Criminal Law 503.
86  MCC Proceeds Inc v Bishopsgate Investment Trust plc [1999] CLC 417, 424–5.
87  (1989) 91 Cr App R 51.
Admissibilit y 331

The Court of Appeal has noted that

a court should be slow to find a professionally qualified man guilty of a breach of his duty
of skill and care towards a client (or third party), without evidence from those within
the same profession as to the standard expected on the facts of the case and the failure
of the professionally qualified man to measure up to that standard. It is not an absolute
rule . . . but, unless it is an obvious case, in the absence of the relevant expert evidence the
claim will not be proved.88
At issue in R v Theodosi89 was the opinion of a police officer who had attended an accident
scene and carried out an investigation involving the observation of markings in the road
and various measurements. The officer in question was qualified at an advanced level in
the investigation and reconstruction of road accidents, and the interpretation of evidence
found at the scenes of such accidents. The officer’s opinion was as follows:
The onus for this accident lies wholly with Mr Theodosi, the driver of the Peugeot. We
have a scenario of three young men, two of whom were driving very powerful cars.
Mr Theodosi, who was the last vehicle of the three, may have allowed himself to be drawn
into a manoeuvre beyond his limited driving experience in that he had to keep up with
his friends, or he may have wanted to show off to the passengers that he had in his vehicle.
Either way Mr Theodosi’s actions in overtaking two other vehicles at a speed in the region
of twice the legal speed limit for the road, amounts in my opinion to nothing less than a
wanton act putting himself and others at risk.90
The Court of Appeal held that, because ‘the reference by the officer to peer groups was
wholly outside his expertise’, and because to admit the evidence would be to usurp the
function of the jury, the opinion evidence in question was inadmissible.91 This may be
compared with the earlier decision of the Court in R v Oakley,92 where it was held that
a police constable who had 15 years’ experience in the traffic division, and had passed a
qualifying examination as an accident investigator, had been rightly permitted to give
expert opinion evidence on how a road accident had occurred. Similarly, in R v Hodges,93
evidence of a police officer in relation to the normal manner of supply of heroin, the usual
price, and the quantity of drugs that would constitute a supply for personal use was held
to have been correctly admitted as expert evidence.94
The issue of expert evidence in the context of voice identification is noteworthy, with a
distinction drawn between such identification and visual identification. ‘Expert evidence
is rarely, if ever, admitted in cases of visual identification. The tribunal of fact is consid-
ered to be in as good a position to assess CCTV footage or video tapes or photographs as
witnesses’.95 However, ‘expert evidence is receivable in cases of voice identification’.96 In
R v Robb, a case concerning voice identification, the Court of Appeal held that the evi-
dence of an expert was admissible even though the auditory technique employed by him
to identify the defendant’s voice was not supplemented by acoustic analysis:

88  Sansom v Metcalfe Hambleton & Co [1998] PNLR 542, 549. 89  [1993] RTR 179.
90  [1993] RTR 179, 181. 91  [1993] RTR 179, 184. 92  (1979) 70 Cr App R 7.
93  [2003] EWCA Crim 290, [2003] 2 Cr App R 15.
94  In addition, it would appear permissible for a police officer to testify that items found at the defend-

ant’s premises are of a type frequently found in the home of drug dealers: R v Jeffries [1997] Crim LR 819.
95  R v O’Doherty [2002] NI 263, [2003] 1 Cr App R 5 at [63]. See also ‘The Province of the Jurist: Judicial

Resistance to Expert Testimony on Eyewitnesses as Institutional Rivalry’ (2013) 126 Harvard Law Review
2381; L Stuesser, ‘Experts on Eyewitness Identification:  I  Just Don’t See it’ (2006) 31 Manitoba Law
Journal 543.
96  R v O’Doherty [2002] NI 263, [2003] 1 Cr App R 5 at [63].
332
Expert E vidence

We do not doubt that his judgment, based on close attention to voice quality, voice pitch
and the pronunciation of vowels and consonants, would have a value significantly greater
than that of the ordinary untutored layman, as the judgment of a hand-writing expert is
superior to that of the man in the street. Dr Baldwin’s reliance on the auditory technique
must, on the evidence, be regarded as representing a minority view in his profession but
he had reasons for his preference and on the facts of this case at least he was not shown to
be wrong.97
Subsequently, in R v O’Doherty, the Court of Appeal of Northern Ireland effectively side-
lined Robb, observing: ‘Time has moved on . . . prosecutors in the rest of Europe invariably
present auditory analysis . . . and quantitative acoustic analysis’.98 Thus,
in the present state of scientific knowledge no prosecution should be brought in Northern
Ireland in which one of the planks is voice identification given by an expert which is solely
confined to auditory analysis. There should also be expert evidence of acoustic analysis . . .
We make three exceptions to this general statement. Where the voices of a known
group are being listened to and the issue is, ‘which voice has spoken which words’ or where
there are rare characteristics which render a speaker identifiable—but this may beg the
question—or the issue relates to the accent or dialect of the speaker . . . acoustic analysis is
not necessary. . . .
 . . . if evidence of voice recognition is relied on by the prosecution, the jury should be
allowed to listen to a tape-recording on which the recognition is based, assuming that the
jury have heard the accused giving evidence. It also seems to us that the jury may listen
to a tape-recording of the voice of the suspect in order to assist them in evaluating expert
evidence and in making up their own minds as to whether the voice on the tapes is the
voice of the defendant.99
Evidence of ‘facial mapping’100 sought to be adduced to assist the jury to determine
whether the person shown on security photographs was the defendant was considered in
R v Stockwell. The Court of Appeal held:
Where, for example, there is a clear photograph and no suggestion that the subject has
changed his appearance, a jury could usually reach a conclusion without help. Where, as
here, however, it is admitted that the appellant had grown a beard shortly before his arrest,
and it is suggested further that the robber may have been wearing clear spectacles and a
wig for disguise, a comparison of photograph and defendant may not be straightforward.
In such circumstances we can see no reason why expert evidence, if it can provide the jury
with information and assistance they would otherwise lack, should not be given.101
A similar approach was taken in R v Clarke to evidence of ‘video superimposition map-
ping’, which was described succinctly by the Court of Appeal as follows:
Photographs from the scene in the bank were transferred to high quality video tape. The
same was done with police identification photos of the appellant. Each was blown-up to
about the same size. The machine was set to display both the head of the robber and the
head of the suspect in exactly the same position on the television screen. Dr Vanezis then

97  (1991) 93 Cr App R 161, 166. 98  [2002] NI 263, [2003] 1 Cr App R 5 at [57].
99  [2002] NI 263, [2003] 1 Cr App R 5 at [59]–[63]. See generally W E O’Brian Jr, ‘Court Scrutiny of
Expert Evidence: Recent Decisions Highlight the Tensions’ (2003) 7 International Journal of Evidence and
Proof 172; D Ormerod, ‘Sounding out Expert Voice Identification’ [2002] Criminal Law Review 771.
100  See generally A Campbell-Tiech, ‘“Stockwell” Revisited: The Unhappy State of Facial Mapping’ [2005]

6 Archbold News 4.
101  (1993) 97 Cr App R 260, 263–4.
Admissibilit y 333

wiped a line up and down the screen: above the line was the appellant’s face, below it was
the face of the robber. As the line moved up and down so more of the one face and less of
the other would be seen. Then the process was repeated but with a vertical line from side
to side. Having compared the two photographs in this way, Dr Vanezis concluded that the
appellant and the robber were the same man.102
The Court concluded:
This is clearly a case like Stockwell where the comparison was not an entirely straightfor-
ward one. The process of enhancement that was used here enabled the jury to appreciate
the similarity in configuration. . . . there was similarity of configuration between the ears,
and the same point could be made in respect of the eyebrows. It is, therefore, not right to
say that expert evidence could not have played a useful role here in assisting the jury in
connection with the issue of identity.103
Subsequently, the Court of Appeal cited Clarke approvingly for the general proposition
that ‘developments in scientific thinking and techniques should not be kept from the
Court’.104
Evidence of facial mapping was also at issue in R v Atkins, the Court of Appeal observing:
where a photographic comparison expert gives evidence, properly based upon study and
experience, of similarities and/or dissimilarities between a questioned photograph and
a known person (including a defendant) the expert is not disabled either by authority or
principle from expressing his conclusion as to the significance of his findings, and . . . he
may do so by use of conventional expressions, arranged in a hierarchy . . . We think it pref-
erable that the expressions should not be allocated numbers, . . . lest that run any small
risk of leading the jury to think that they represent an established numerical, that is to say
measurable, scale. The expressions ought to remain simply what they are, namely forms
of words used. They need to be in an ascending order if they are to mean anything at all,
and if a relatively firm opinion is to be contrasted with one which is not so firm. They are,
however, expressions of subjective opinion, and this must be made crystal clear to the jury
charged with evaluating them.105
Evidence from an expert with lip-reading skills was considered in R v Luttrell,106 where
the Court of Appeal said:
Lip-reading is a well recognised skill and lip-reading from video footage is no more
than an application of that skill. It may increase the difficulty of the task, as may the
speaker’s facial features and the angle of the observation, but the nature of the skill
remains the same. . . . It does not of course follow that, in every case where lip-reading
evidence is tendered, it will be admissible. The decision in each case is likely to be
highly fact sensitive. For example, a video may be of such poor quality or the view of the
speaker’s face so poor that no reliable interpretation is possible. There may also be cases

102  [1995] 2 Cr App R 425, 428.

103  [1995] 2 Cr App R 425, 431. See generally M C Bromby, ‘At Face Value?’ (2003) 153 New Law Journal
302. See also R v Meads [1996] Crim LR 519 on expert evidence as to handwriting.
104  R v Harris [2005] EWCA Crim 1980, [2006] 1 Cr App R 5 at [270]. See also R v B (T) [2006] EWCA

Crim 417, [2006] 2 Cr App R 3.

105  [2009] EWCA Crim 1876, [2010] 1 Cr App R 8, (2009) 173 JP 529 at [31]. See generally G Edmond et al,

‘Atkins v The Emperor: The “Cautious” Use of Unreliable “Expert” Opinion’ (2010) 14 International Journal
of Evidence and Proof 146.
106  [2004] EWCA Crim 1344, [2004] 2 Cr App R 31. See generally G Forlin and S Jackson, ‘The Need to

Test Expert Evidence’ [2004] 6 Archbold News 5; S Jackson and G Forlin, ‘Read My Lips’ (2004) 154 New
Law Journal 1146.
334
Expert E vidence

where the interpreting witness is not sufficiently skilled. A judge may properly take into
account: whether consistency with extrinsic facts confirms or inconsistency casts doubt
on the reliability of an interpretation; whether information provided to the lip-reader
might have coloured the reading; and whether the probative effect of the evidence
depends on the interpretation of a single word or phrase or on the whole thrust of the
conversation. In the light of such considerations, (which are not intended to be exhaus-
tive) a judge may well rule on the voire dire that any lip-reading evidence proffered
should not be admitted before the jury. As to the skill of such a witness, we have been
told that there are presently only four witnesses in this country . . . who undertake this
kind of forensic work. As and when new witnesses appear, it will be entirely appropriate,
when they first give evidence, for their expertise to be challenged and tested by refer-
ence, in appropriate cases, to disclosed material bearing on their skill or lack of it. . . .
. . . lip reading evidence requires a warning from the judge as to its limitations and
the concomitant risk of error, not least because it will usually be introduced through an
expert who may not be completely accurate: . . . lip reading evidence will, on occasion,
fall significantly short of perfection. That imperfection does not render the material
inadmissible, . . . but it does necessitate a careful and detailed direction. . . . its precise
terms will be fact-dependent, but in most, if not all cases, the judge should spell out
to the jury the risk of mistakes as to the words that the lip reader believes were spo-
ken; the reasons why the witness may be mistaken; and the way in which a convincing,
authoritative and truthful witness may yet be a mistaken witness. Furthermore, the
judge should deal with the particular strengths and weaknesses of the material in the
instant case, carefully setting out the evidence, together with the criticisms that can
properly be made of it because of other evidence. The jury should be reminded that
the quality of the evidence will be affected by such matters as the lighting at the scene,
the angle of the view in relation to those speaking, the distances involved, whether
anything interfered with the observation, familiarity on the part of the lip-reader with
the language spoken, the extent of the use of single syllable words, any awareness on
the part of the expert witness of the context of the speech and whether the probative
value of the evidence depends on isolated words or phrases or the general impact of long
passages of conversation. However, . . . the precise terms of the direction will depend on
the facts of the case, and the instruction to the jury in this [area] should never be given
mechanistically.107
In R v Ferdinand, an issue for consideration by the Court of Appeal arose from the
following:
A consultant podiatric surgeon, Mr Barry Francis, gave evidence that he had compared
the walking gait of the person he referred to as ‘Suspect 2’ in CCTV footage recorded in
Malden Road at 14.50 [on 20 April 2011] with a person recorded by CCTV in the Rowley
Estate at 16.35 and with an admitted CCTV recording of Hashi in police custody on 27
April 2011. Mr Francis identified several features of walking gait that were common to
Suspect 2 and Hashi, and he found no differences that could distinguish them. The pros-
ecution asserted that it was safe to conclude that Suspect 2 . . . was Hashi; and accordingly
that he was one of the attackers who entered Abbey Road Estate at 16.40.108
The Court observed:
Comparison evidence founded upon the science and expertise of podiatry is, we recog-
nise, a technique still in its infancy. . . . research conducted with a view to establishing

107  [2004] EWCA Crim 1344, [2004] 2 Cr App R 31 at [38], [44].

108  [2014] EWCA Crim 1243, [2014] 2 Cr App R 23 at [23].
Admissibilit y 335

nationally accepted standards continues to take place. It remains, in our view, a tech-
nique that requires careful scrutiny before expert evidence is admitted and, if admitted,
rigorous examination of the quality of the images and the opinion expressed by the
expert. In the present case Judge Wide QC ensured that, once admitted, the evidence
was subjected to the scrutiny required. We reject the submission that the evidence was
so flawed that the jury should not have been permitted to act upon it. The jury was
entitled to conclude that the prosecution had proved that Suspect 2 was the defendant
Hashi.109

2.11  Other Jurisdictions

Extensive consideration has been given to the issue of expert evidence in other
jurisdictions,110 in particular in the landmark 1993 decision of the US Supreme Court
in Daubert v Merrell Dow Pharmaceuticals, Inc.111 Daubert, which was cited with
apparent approval by the Court of Appeal in R v Dallagher,112 contains valuable guid-
ance on the sorts of considerations which may be taken into account in determining
admissibility. At issue was rule 702 of the Federal Rules of Evidence, which prior to
being amended in 2000 provided: ‘If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.’ The Supreme
Court emphasized that a determination of admissibility under rule 702 was a flexible
one;113 many factors were relevant and thus the Court did ‘not presume to set out a
definitive checklist or test’, but considered that ‘some general observations’ would be
appropriate.114
First, can the theory or technique in question be, and has it been, tested?115
A second ‘consideration is whether the theory or technique has been subjected to peer
review and publication’:
Publication (which is but one element of peer review) is not a sine qua non of admis-
sibility; it does not necessarily correlate with reliability, . . . and in some instances
well-grounded but innovative theories will not have been published . . . Some propos­
itions, moreover, are too particular, too new, or of too limited interest to be published.
But submission to the scrutiny of the scientific community is a component of ‘good
science,’ in part because it increases the likelihood that substantive flaws in method-
ology will be detected. . . . The fact of publication (or lack thereof) in a peer-reviewed
journal thus will be a relevant, though not dispositive, consideration in assessing the
scientific validity of a particular technique or methodology on which an opinion is
premised.116

109  [2014] EWCA Crim 1243, [2014] 2 Cr App R 23 at [77].

110  See also, for the position in the International Criminal Court, R Derham and N Derham, ‘From Ad
Hoc to Hybrid—The Rules and Regulations Governing Reception of Expert Evidence at the International
Criminal Court’ (2010) 14 International Journal of Evidence and Proof 25.
111  113 S Ct 2786 (1993).
112  [2002] EWCA Crim 1903, [2003] 1 Cr App R 12 at [29]. See generally W E O’Brian Jr, ‘Court Scrutiny

of Expert Evidence: Recent Decisions Highlight the Tensions’ (2003) 7 International Journal of Evidence
and Proof 172.
113  113 S Ct 2786, 2797 (1993). 114  113 S Ct 2786, 2796 (1993).
115  113 S Ct 2786, 2796 (1993). 116  113 S Ct 2786, 2797 (1993).
336
Expert E vidence

Thirdly, ‘in the case of a particular scientific technique, the court ordinarily should
consider the known or potential rate of error, . . . and the existence and maintenance of
standards controlling the technique’s operation’.117
Finally, has the theory or technique in question gained general acceptance? ‘Widespread
acceptance can be an important factor in ruling particular evidence admissible’.118
It may be helpful to
read the admissibility criteria set out in Daubert without unnecessary technicality and at
a level of generality which brings out their good sense, along the following lines:
1. Is the science tried and tested in practice, or is it so far just a matter of speculation or
hypothesis?
2. Has the science been exposed to informed analysis and criticism, or has it been hidden
away and insulated from critical scrutiny?
3. Where practical trials have been undertaken, how often do the empirical data bear out
the theory, and, conversely, how often is the theory unconfirmed or even confounded
when tested in practice?
4. How does the science rate in the expert opinion of other relevant practitioners?119
The Supreme Court confirmed in 1999 in Kumho Tire Co v Carmichael that the Daubert
guidelines applied ‘not only to testimony based on “scientific” knowledge, but also to tes-
timony based on “technical” and “other specialized” knowledge’.120 The Court reiterated
that ‘the trial judge must have considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is reliable’.121
As will have become clear from earlier discussion, it is a rule of English law that,
to be admitted, expert evidence must be necessary in the sense of addressing an issue
which the jury is not competent to determine unaided. The usefulness of this rule may
be questioned. The law may well make inaccurate assumptions about the ability of the

117
  113 S Ct 2786, 2797 (1993). 118
  113 S Ct 2786, 2797 (1993).
119
  P Roberts, ‘Tyres with a “Y”:  An English Perspective on Kumho Tire and its Implications for the
Admissibility of Expert Evidence’ (1999) 1(2) International Commentary on Evidence.
120
  119 S Ct 1167, 1171 (1999).
121
  119 S Ct 1167, 1176 (1999). See also General Electric Co v Joiner 522 US 136 (1997), where the US
Supreme Court discussed the approach to be taken by an appellate court in reviewing a trial court’s
decision to admit or exclude expert testimony under Daubert. See generally, among numerous discus-
sions of the post-Daubert position in the USA, E K Cheng and A H Yoon, ‘Does Frye or Daubert Matter?
A Study of Scientific Admissibility Standards’ (2005) 91 Virginia Law Review 471; G Edmond, ‘Deflating
Daubert:  Kumho Tire Co v Carmichael and the Inevitability of General Acceptance (Frye)’ (2000) 23
University of New South Wales Law Journal 38; G Edmond, ‘Judicial Representations of Scientific Evidence’
(2000) 63 Modern Law Review 216, 227–33; M H Graham, ‘The Daubert Dilemma: At Last a Viable Solution’
(1998) 2 International Journal of Evidence and Proof 211 (which contains a discussion of the ambiguities
inherent in the decision); M Jabbar, ‘Overcoming Daubert’s Shortcomings in Criminal Trials: Making the
Error Rate the Primary Factor in Daubert’s Validity Inquiry’ (2010) 85 New York University Law Review
2034; C Nesson and J Demers, ‘Gatekeeping: An Enhanced Foundational Approach to Determining the
Admissibility of Scientific Evidence’ (1998) 49 Hastings Law Journal 335; Note, ‘Admitting Doubt: A New
Standard for Scientific Evidence (2010) 123 Harvard Law Review 2021; Note, ‘Reliable Evaluation of Expert
Testimony’ (2003) 116 Harvard Law Review 2142; C Pamplin, ‘Taking Experts out of the Court’ (2004) 154
New Law Journal 1771; S Pearl and G Luxmoore, ‘The Judge as Gatekeeper—A US Practice Worth Adopting’
(1998) 148 New Law Journal 974; P Roberts, ‘Tyres with a “Y”: An English Perspective on Kumho Tire and its
Implications for the Admissibility of Expert Evidence’ (1999) 1(2) International Commentary on Evidence;
D G Savage, ‘Putting the Brakes on Junk Analysis’ [May 1999] ABA Journal 38; B M Sheldrick, ‘Assessing
Scientific Methodology in Toxic Tort Cases: General Electric Co et al v Joiner’ (1999) 3 International Journal
of Evidence and Proof 250; W C Smith, ‘No Escape from Science’ [Aug 2000] ABA Journal 60.
Admissibilit y 337

trier of fact to cope without the expert evidence, an issue which is inherently incapable
of accurate determination.122 If that is the case, it is arguable that the admissibility test
should focus on reliability rather than necessity. Indeed, this would appear to have
been the approach taken to rule 702 of the US Federal Rules of Evidence even in its
pre-2000 form, when it provided, in essence, for the admissibility of expert evidence if
it would assist the trier of fact to understand the evidence in the case or to determine
a fact in issue. In other words, expert evidence was admissible if it was considered
to be necessary; if it would not assist the trier of fact then it would be unnecessary.
Despite this, the guidelines laid down in Daubert focused exclusively, as we have seen,
on reliability concerns. Speculating about whether the trier of fact would be able to
cope if the expert evidence were not adduced would appear not to have been a relevant
consideration.
Subsequent to Daubert and Kumho Tire, rule 702 was expanded in 2000 to read:
If scientific, technical, or other specialized knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the tes-
timony is the product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
Thus reliability considerations are now formally incorporated within rule 702.
An approach involving an identification and consideration of all relevant factors
clearly has more to commend it than an approach involving unclear or unarticulated
reasoning. Odgers and Richardson noted in the 1990s in the Australian123 context that

122
  See also F E Raitt, ‘A New Criterion for the Admissibility of Scientific Evidence: The Metamorphosis
of Helpfulness’ (1998) 1 Current Legal Issues 153.
123
  See also HG v R [1999] HCA 2; Velevski v R [2002] HCA 4; Dasreef Pty Ltd v Hawchar [2011] HCA
21; Honeysett v R [2014] HCA 29; G Edmond, ‘The Admissibility of Forensic Science and Medicine
Evidence under the Uniform Evidence Law’ (2014) 38 Criminal Law Journal 136; N Wilson, ‘Expert
Evidence in Australia:  A  More Transparent Path Post-Dasreef ’ (2014) 33 Civil Justice Quarterly 412.
On the position in Canada, see generally R v Trochym [2007] 1 SCR 239; Cinar Corporation v Robinson
2013 SCC 73, [2013] 3 SCR 1168; R v Sekhon 2014 SCC 15, [2014] 1 SCR 272; N Bala, ‘R v D (D): The
Supreme Court and Filtering of Social Science Knowledge about Children’ (2001) 36 Criminal Reports
(5th) 283; E Cunliffe, ‘Without Fear or Favour? Trends and Possibilities in the Canadian Approach
to Expert Human Behaviour Evidence’ (2006) 10 International Journal of Evidence and Proof 280; L
Dufraimont, ‘New Challenges for the Gatekeeper: The Evolving Law on Expert Evidence in Criminal
Cases’ (2012) 58 Criminal Law Quarterly 531; P Michell and R Mandhane, ‘The Uncertain Duty of the
Expert Witness’ (2005) 42 Alberta Law Review 635; P Roberts, ‘Expert Evidence in Canadian Criminal
Proceedings:  More Lessons from North America’ (1998) 1 Current Legal Issues 175; B M Sheldrick,
‘Expert Evidence, Sexual Assault, and the Testimony of Children: R v DD’ (2001) 5 International Journal
of Evidence and Proof 199. On South Africa see generally L Meintjes-Van der Walt, ‘The Proof of the
Pudding: The Presentation and Proof of Expert Evidence in South Africa’ (2003) 47 Journal of African
Law 88; L Meintjes-Van der Walt, ‘Ruling on Expert Evidence in South Africa: A Comparative Analysis’
(2001) 5 International Journal of Evidence and Proof 226; L Meintjes-Van der Walt, ‘Tracing Trends: The
Impact of Science and Technology on the Law of Criminal Evidence and Procedure’ (2011) 128 South
African Law Journal 147. On Italy see D Dwyer, ‘Changing Approaches to Expert Evidence in England
and Italy’ (2003) 1(2) International Commentary on Evidence. For a comparative study of England
and Wales, the Netherlands, and South Africa, see L Meintjes-van der Walt, Expert Evidence in the
Criminal Justice Process: A Comparative Perspective (2001). For a comparative study of the Netherlands
and the USA see P van Kampen, ‘Expert Evidence Compared’ in M Malsch and J F Nijboer (eds),
Complex Cases:  Perspectives on the Netherlands Criminal Justice System (1999); P T C van Kampen,
Expert Evidence Compared:  Rules and Practices in the Dutch and American Criminal Justice System
(1998). See also C Champod and J Vuille, ‘Scientific Evidence in Europe—Admissibility, Evaluation and
338
Expert E vidence

it may be more appropriate to see the issue as an exercise in balancing. There are recent
decisions in Australia which suggest such an approach, one in which the test renders inad-
missible an expert opinion if the benefits to be derived from the opinion are outweighed
by the disadvantages associated with it. According to this approach, relevant considera-
tions would include:
• the reliability of the particular field of expertise;
• the reliability of the application of that field of expertise to the particular issue;
• the reliability of the expert’s opinion (taking into account the expert’s qualifications,
experience, facilities and resources);
• the likely capacity of the tribunal of fact to understand and assimilate the evidence,
without being misled or simply deferring to the expert opinion;
• the likely capacity of the tribunal of fact to properly determine the issue without the
benefit of the expert opinion (thus, counter-intuitive expert testimony is more likely to
be admitted than expert testimony which confirms common sense perceptions);
• the importance of the issue to which the evidence relates;
• the likely court time utilised if the opinion is admitted;
• the danger that the focus of the trial will shift from the evidence of the facts in dispute
to the conflict between the competing theories of the various expert witnesses; and
• whether the evidence is being led against a defendant in a criminal trial.124
In relation to the last consideration mentioned by Odgers and Richardson, one writer has
gone so far as to argue that ‘scientific evidence failing to satisfy [a standard of “general
acceptance”] should always be excluded when offered against the defendant in a criminal
case’.125

2.12  The Law Commission on Expert Opinion Evidence in

Criminal Proceedings
The Law Commission recommends that expert opinion evidence be admissible if
• ‘it would provide information which is likely to be outside a judge or jury’s experi-
ence and knowledge, and which would give them help they need in arriving at their
conclusions’;126 and
• ‘the person who gives it is qualified to do so’127 ‘by virtue of study, training, experi-
ence or any other appropriate means’;128 and

Equality of Arms’ (2011) 9(1) International Commentary on Evidence; S Chen, ‘The 2012 Amendments to
Singapore’s Evidence Act: More Questions than Answers as regards Expert Opinion Evidence?’ (2013)
34 Statute Law Review 262.
124  S J Odgers and J T Richardson, ‘Keeping Bad Science out of the Courtroom—Changes in American

and Australian Expert Evidence Law’ (1995) 18 University of New South Wales Law Journal 108, 126–7.
125  A Stein, ‘The Refoundation of Evidence Law’ (1996) 9 Canadian Journal of Law and Jurisprudence

279, 331 (italics added). See also A Stein, Foundations of Evidence Law (2005) 197. Contra R C Park, ‘Daubert
on a Tilted Playing Field’ (2003) 33 Seton Hall Law Review 1113.
126  Draft Criminal Evidence (Experts) Bill, cl 1(1)(a), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

127  Draft Criminal Evidence (Experts) Bill, cl 1(1)(b), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

128  Draft Criminal Evidence (Experts) Bill, cl 2(1), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

Admissibilit y 339

• there is no ‘significant risk that the expert will not comply (or has not complied)’129
with the ‘duty to the court to give objective and unbiased expert evidence’130 in con-
nection with the proceedings; and
• ‘if a representation is made to the court that the evidence is not sufficiently reliable
to be admitted, and it appears to the court that it might not be’, or the court of its
own motion requires a demonstration of sufficient reliability, the party proposing to
adduce the evidence shows that it is sufficiently reliable to be admitted.131
In relation to the determination of sufficient reliability:
(1) Expert opinion evidence is sufficiently reliable to be admitted if—
(a) the opinion is soundly based, and
(b) the strength of the opinion is warranted having regard to the grounds on which
it is based.
(2) Any of the following, in particular, could provide a reason for determining that
expert opinion evidence is not sufficiently reliable—
(a) the opinion is based on a hypothesis which has not been subjected to sufficient
scrutiny (including, where appropriate, experimental or other testing), or which
has failed to stand up to scrutiny;
(b) the opinion is based on an unjustifiable assumption;
(c) the opinion is based on flawed data;
(d) the opinion relies on an examination, technique, method or process which
was not properly carried out or applied, or was not appropriate for use in the
particular case;
(e) the opinion relies on an inference or conclusion which has not been properly
reached.132
The court must also, when assessing reliability, have regard, alongside ‘anything else
which appears to the court to be relevant’,133 to such of the following factors as appear to
the court to be relevant:
(a) The extent and quality of the data on which the opinion is based, and the validity of
the methods by which they were obtained.
(b) If the opinion relies on an inference from any findings, whether the opinion properly
explains how safe or unsafe the inference is (whether by reference to statistical sig-
nificance or in other appropriate terms).
(c) If the opinion relies on the results of the use of any method (for instance, a test,
measurement or survey), whether the opinion takes proper account of matters, such

129  Draft Criminal Evidence (Experts) Bill, cl 3(3), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

130  Draft Criminal Evidence (Experts) Bill, cl 3(1), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

131  Draft Criminal Evidence (Experts) Bill, cl 6, in Law Commission (Law Com No 325), Expert Evidence

in Criminal Proceedings in England and Wales (2011).

132  Draft Criminal Evidence (Experts) Bill, cl 4(1), (2), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

133  Draft Criminal Evidence (Experts) Bill, cl 4(3)(c), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

340
Expert E vidence

as the degree of precision or margin of uncertainty, affecting the accuracy or reli-

ability of those results.
(d) The extent to which any material upon which the opinion is based has been reviewed
by others with relevant expertise (for instance, in peer-reviewed publications), and
the views of those others on that material.
(e) The extent to which the opinion is based on material falling outside the expert’s own
field of expertise.
(f) The completeness of the information which was available to the expert, and
whether the expert took account of all relevant information in arriving at the
opinion (including information as to the context of any facts to which the opinion
relates).
(g) Whether there is a range of expert opinion on the matter in question; and, if there
is, where in the range the opinion lies and whether the expert’s preference for the
opinion proffered has been properly explained.
(h) Whether the expert’s methods followed established practice in the field; and, if they
did not, whether the reason for the divergence has been properly explained.134
The Government has rejected the Law Commission’s recommendation that such a test
of sufficient reliability be introduced.135

3  Use of the Work of Others and the Rule against Hearsay

Suppose that a doctor seeks, in giving her opinion about a patient’s condition, to base
that opinion on accrued medical knowledge as well as on a questionnaire that the patient
completed about his symptoms.136 This scenario raises the following questions. To what
extent may an expert base an opinion on the work of others? What are the implications
of the rule against hearsay? These questions, previously governed by the common law,137
are now addressed in the Criminal Justice Act 2003. Section 118(1) specifically preserves
the ‘rule of law under which in criminal proceedings an expert witness may draw on the
body of expertise relevant to his field’. Furthermore, section 127 provides that an expert
may base an opinion on a statement prepared by another138 if the following four condi-
tions are satisfied:
• the statement has been prepared for the purposes of the proceedings139 or a criminal
investigation from which the proceedings arise;140
• ‘the person who prepared the statement had or may reasonably be supposed to have
had personal knowledge of the matters stated’;141

134  Draft Criminal Evidence (Experts) Bill, Sch, Pt 1, cl 1, in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

135  Ministry of Justice, The Government’s Response to the Law Commission Report: ‘Expert Evidence in

Criminal Proceedings in England and Wales’ (Law Com No 325) (2013).

136  See R Taylor, M Wasik, and R Leng, Blackstone’s Guide to the Criminal Justice Act 2003 (2004) 161.
137  English Exporters v Eldonwall Ltd [1973] Ch 415; R v Abadom [1983] 1 WLR 126; H v Schering

Chemicals [1983] 1 WLR 143; R v Hodges [2003] EWCA Crim 290, [2003] 2 Cr App R 15. See also R v Jackson
[1996] 2 Cr App R 420. See generally A Ashworth and R Pattenden, ‘Reliability, Hearsay Evidence and the
English Criminal Trial’ (1986) 102 Law Quarterly Review 292, 302–3.
138  S 127(2). 139  S 127(1)(a). 140  S 127(6). 141  S 127(1)(b).
‘ Ultimate Issues’ 341

• appropriate notice is given that the expert will in evidence base an opinion on the
statement;142
• ‘the notice gives the name of the person who prepared the statement and the nature
of the matters stated’.143
The statement is to be treated in the proceedings as evidence of what it states.144
Section 127 does not apply, however, ‘if the court, on an application by a party to the
proceedings, orders that it is not in the interests of justice that it should apply’.145 The mat-
ters to be considered in deciding whether to make such an order include:
(a) the expense of calling as a witness the person who prepared the statement;
(b) whether relevant evidence could be given by that person which could not be given by
the expert;
(c) whether that person can reasonably be expected to remember the matters stated well
enough to give oral evidence of them.146
If section 127 were to be disapplied, the effect would be that the maker of the statement on
which the expert relied would be required to be called as a witness as a precondition for
the admissibility of the expert evidence.

4  ‘Ultimate Issues’
The common law may once have recognized a rule prohibiting an expert from giving an
opinion on the very issue which the trier of fact is to determine. In civil proceedings the
‘ultimate issue rule’, as such a rule is known, was expressly abolished by section 3 of the
Civil Evidence Act 1972:
(1) Subject to any rules of court made in pursuance of this Act, where a person is called
as a witness in any civil proceedings, his opinion on any relevant matter on which he
is qualified to give expert evidence shall be admissible in evidence. . . .
(3) In this section ‘relevant matter’ includes an issue in the proceedings in question.
In criminal cases the judiciary has tended to highlight the futility of an ultimate issue rule:
Whether an expert can give his opinion on what has been called the ultimate issue, has
long been a vexed question. There is a school of opinion supported by some authority
doubting whether he can . . . On the other hand, if there is such a prohibition, it has long
been more honoured in the breach than the observance . . .
The rationale behind the supposed prohibition is that the expert should not usurp the
functions of the jury. But since counsel can bring the witness so close to opining on the
ultimate issue that the inference as to his view is obvious, the rule can only be . . . a matter
of form rather than substance.147
Another observation is in a similar vein: ‘Those who practise in the criminal courts see
every day cases of experts being called on the question of diminished responsibility, and
although technically the final question “Do you think he was suffering from diminished

142 
S 127(1)(c). 143  S 127(1)(d). 144  S 127(3). 145  S 127(4). 146  S 127(5).

R v Stockwell (1993) 97 Cr App R 260, 265. See also, generally, Re M and R (Minors) [1996] 4 All ER 239,
147 

251. The Supreme Court of Canada has stated that ‘expert testimony is admissible even if it relates directly
to the ultimate question which the trier of fact must answer’: R v R (D) (1996) 107 CCC (3d) 289, 304.
342
Expert E vidence

responsibility?” is strictly inadmissible, it is allowed time and time again without any
objection.’148
In the light of such observations, the express abolition of any ultimate issue rule in
criminal proceedings must be regarded as long overdue.149

5  Expert Witnesses
5.1  Qualifications, Duties, and Responsibilities
The Court of Appeal has ‘accept[ed] that there can be proper anxiety about new areas
of expertise. Courts need to be scrupulous to ensure that evidence proffered as expert,
for any party, is indeed based upon specialised experience, knowledge or study. Mere
self-certification, without demonstration of study, method and expertise, is by itself not
sufficient.’150 The issue of determining whether expert witnesses are appropriately quali-
fied was addressed by the Runciman Royal Commission:
Expert witnesses need to be identified as such by reference to their experience and quali-
fications. At present, this is a matter for the courts to assess and we think that it should
continue to be so. The courts should be guided, where there is any doubt, by whether the
witness possesses a professional qualification guaranteed by membership of the appropri-
ate professional body or the possession of a relevant professional or vocational degree,
diploma or certificate. We see no need for a system of statutory certification or accredita-
tion of expert witnesses nor for the maintenance of a register of experts by a Government
Department. We do, however, recommend that the professional bodies assist the courts
in their task of assessment by maintaining a special register of their members who are
suitably qualified to act as expert witness in particular areas of expertise. We do not see
professional bodies as guaranteeing the competence of individuals. But they might be
asked to give advice to legal representatives on the qualifications that witnesses should
hold if they are to be considered expert in a particular field.151
In the light of evidence of dissatisfaction among solicitors with the competence of
experts,152 the importance of these observations is clear. More specifically, there is evi-
dence of delays in criminal litigation resulting from experts’ non-compliance with
timetables.153
In view of the legal culture in which they operate, there are powerful reasons why an
expert witness might choose to remain ‘deferential’ in court154 or become partisan.155

148  DPP v A & BC Chewing Gum Ltd [1968] 1 QB 159, 164.

149  See also C Pamplin, ‘Game Over?’ (2014) 164 New Law Journal 21.
150  R v Atkins [2009] EWCA Crim 1876, [2010] 1 Cr App R 8, (2009) 173 JP 529 at [27].
151  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 160–1. On the issue of accreditation

see further P Cooper, ‘Quality Checking the Experts’ (2005) 155 New Law Journal 286; H Hallett, ‘Expert
Witnesses in the Courts of England and Wales’ (2005) 79 Australian Law Journal 288, 294–5; A Keogh,
‘Experts in the Dock’ (2004) 154 New Law Journal 1762; M Solon, ‘Experts: Amateurs or Accredited?’ (2004)
154 New Law Journal 292.
152  See ‘Solicitors Condemn Failings of Expert Witnesses’ (1998) 142 Solicitors’ Journal 531.
153  ‘Expert Witnesses “Take on Too Much Work”’ (2014) 158(8) Solicitors’ Journal 9.
154  C A G Jones, Expert Witnesses: Science, Medicine, and the Practice of Law (1994) 126–7.
155  R v Ward [1993] 2 All ER 577, 628:  ‘we have identified the cause of the injustice done to the

appellant on the scientific side of the case as stemming from the fact that three senior forensic scien-
tists at RARDE regarded their task as being to help the police. They became partisan. It is the clear
duty of government forensic scientists to assist in a neutral and impartial way in criminal investiga-
tions. They must act in the cause of justice.’ It has been argued, however, that ‘“neutrality” is better
Expert Witnesses 343

It is therefore important that the duties and responsibilities of expert witnesses are
clearly appreciated.156 Rule 35.3 of the Civil Procedure Rules provides:
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received
instructions or by whom they are paid.
Further clarification of the duties of experts is provided in the Practice Direction sup-
plementing Part 35:
2.1 Expert evidence should be the independent product of the expert uninfluenced by
the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters
within their expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from
their opinions.
2.4 Experts should make it clear—
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have
insufficient information.
In criminal proceedings, rule 33.2 of the Criminal Procedure Rules 2014 provides:
(1) An expert must help the court to achieve the overriding objective by giving opinion
which is—
(a) objective and unbiased; and
(b) within the expert’s area or areas of expertise.
(2) This duty overrides any obligation to the person from whom the expert receives
instructions or by whom the expert is paid.
(3) This duty includes obligations—
(a) to define the expert’s area or areas of expertise—
(i) in the expert’s report, and
(ii) when giving evidence in person;
(b) when giving evidence in person, to draw the court’s attention to any question to
which the answer would be outside the expert’s area or areas of expertise; and
(c) to inform all parties and the court if the expert’s opinion changes from that con-
tained in a report served as evidence or given in a statement.157

understood as a social and representational achievement shaped by the ability of those supporting or
defending a panel, expert, opinion or text to manage or sustain that appearance than as an intrinsic
attribute manifested in a person(s) or their knowledge behaviour and methods’: G Edmond, ‘Judicial
Representations of Scientific Evidence’ (2000) 63 Modern Law Review 216, 248. See also D M Dwyer,
‘The Causes and Manifestations of Bias in Civil Expert Evidence’ (2007) 26 Civil Justice Quarterly
425 (bias distinguished from genuine disagreement); M Mckinnon, ‘Leading Judge Casts Doubt over
Expert Evidence’, Law Society’s Gazette, 20 Oct 2005 (online); D Dwyer, The Judicial Assessment of
Expert Evidence (2008) Ch 7.
156  See generally F Gibb, ‘The Art of being an Expert Witness’, The Times, 17 Nov 2009 (online); S Millett,

‘Ethics of Expert Evidence’ (2013) 87 Australian Law Journal 628.

157  See also Forensic Science Regulator, Legal Obligations (FSR-I-400: Issue 2) (2013).
344
Expert E vidence

It may be inappropriate for an expert to give evidence if he or she is in some way an ‘interested
party’:
It is not the existence of an interest or connection with the litigation or a party thereto, but
the nature and extent of that interest or connection which determines whether an expert wit-
ness should be precluded from giving evidence. Hence, once such an interest or connection is
ascertained a decision must be made promptly as a matter of case management as to whether
the expert’s evidence is precluded or not.158
This was reiterated by the Court of Appeal in Toth v Jarman,159 where it was noted that ‘a
material or significant conflict of interest’160 was likely to lead to the expert’s evidence being
precluded. The Court emphasized the importance of any potential conflict being disclosed at
as early a stage as possible. ‘The conflict of interest could be of any kind, including a financial
interest, a personal connection, or an obligation, for example, as a member or officer of some
other body.’161
Also requiring attention is the role played by solicitors in this area. There is evidence, for
example, that solicitors may exert pressure on experts to modify their reports.162 While there
may be legitimate reasons for seeking such modification in some cases, the possibility of
inappropriate pressure cannot be ignored. Further, the fact that many solicitors have appar-
ently been slow in paying expert witnesses their fees163 is clearly a cause for concern.
Consistently with the idea of promoting consensualism over adversarialism, discus-
sions between experts are actively encouraged in civil proceedings. Rule 35.12 of the Civil
Procedure Rules provides:
(1) The court may, at any stage, direct a discussion between experts for the purpose of
requiring the experts to—
(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they must pre-
pare a statement for the court setting out those issues on which—
(a) they agree; and
(b) they disagree, with a summary of their reasons for disagreeing.
(4) The content of the discussion between the experts shall not be referred to at the trial
unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions, the agree-
ment shall not bind the parties unless the parties expressly agree to be bound by the
agreement.164

158  Armchair Passenger Transport Ltd v Helical Bar Plc [2003] EWHC 367 (QB) at [48].
159  [2006] EWCA Civ 1028, [2006] CP Rep 44. See generally J Levy, ‘Will they ever Learn?’ (2006) 156
New Law Journal 1671.
160  [2006] EWCA Civ 1028, [2006] CP Rep 44 at [102].
161  [2006] EWCA Civ 1028, [2006] CP Rep 44 at [119].
162  F Gibb, ‘Lawyers Push Experts to Favour Clients’, The Times, 20 Nov 2014 (online); J Miller, ‘Experts

under Pressure’ (2014) 164 New Law Journal 5.

163  C Pamplin, ‘Expert Analysis’ (2013) 163 New Law Journal 35, 35.
164  See generally M Solon, ‘A Matter of Protocol’ (2010) 160 New Law Journal 1305; B Thompson, ‘Well

Met?’ (2003) 153 New Law Journal 1145. For the position in Canada see P Michell, ‘Pre-Hearing Expert
Conferences: Canadian Developments’ (2011) 30 Civil Justice Quarterly 93.
Expert Witnesses 345

Thus, rule 35.12
provides a balance between the need for the parties’ experts to be able to have a free
discussion about issues amenable to their expert opinion which are relevant in the
case without the details of those discussions becoming material which can be used
in the proceedings, with the court’s need to have some proportionate and useful
product of those discussions. The statement for the court for which r 35.12(3) pro-
vides . . . is a statement which, from the very wording of the rule, is available for use
in the proceedings. It is not protected by privilege. One of its purposes is to define
and narrow the contentious issues. An agreement of this kind is likely to inf luence
any decision the court may reach and the court is likely to make findings consonant
with what the experts have stated to be their agreement. But the court is not bound
to do so . . .
. . . It would no doubt be possible for a party instructing an expert in civil pro-
ceedings to instruct that expert not to proceed in accordance with an order under
r 35.12(3). But . . ., if this happened, the expert would have to decline to continue to act
as an expert in the proceedings, or at least to seek the court’s direction in that respect.
For, in truth, the instruction would be an instruction not to perform the expert’s duty
to the court. It would be so because the postulated instruction would be an instruc-
tion to disobey an order of the court for which the Rules provide, and an instruction
to the expert not to perform his overwriting [sic] duty to the court, for which again
the Rules provide.165
In a similar vein, rule 33.6 of the Criminal Procedure Rules 2014 now provides:
(1) This rule applies where more than one party wants to introduce expert evidence.
(2) The court may direct the experts to—
(a) discuss the expert issues in the proceedings; and
(b) prepare a statement for the court of the matters on which they agree and disagree,
giving their reasons.
(3) Except for that statement, the content of that discussion must not be referred to with-
out the court’s permission.
(4) A  party may not introduce expert evidence without the court’s permission if the
expert has not complied with a direction under this rule.
While the encouragement to reach agreement in both civil and criminal cases is admira-
ble, the danger that any ‘agreement’ is ‘arrived at through professional deference rather
than scientific consensus’166 must not be overlooked.

5.2  ‘Blaming’ Experts

Ultimately, it would be unfair to lay undue blame at the door of expert witnesses in all
cases where problems have been uncovered. As the House of Commons Science and
Technology Committee acknowledged:
Expert witnesses have been penalised far more publicly than the judge or lawyers in
cases where expert evidence has been called into question. These cases represent a

165  Aird v Prime Meridian Ltd [2006] EWCA Civ 1866, [2007] CP Rep 18 at [3]‌–[4]. See generally E Parkin

and S Partington, ‘Justified Privilege?’ (2007) 151 Solicitors’ Journal 319.

166  D Ormerod, ‘Expert Evidence: Where Now? What Next?’ [2006] 5 Archbold News 5, 9.
346
Expert E vidence

systems failure. Focussing criticism on the expert has a detrimental effect on the will-
ingness of other experts to serve as witnesses and detracts attention from the flaws in
the court process and legal system which, if addressed, could help to prevent future
miscarriages of justice.167
The Committee recommended mandatory training of barristers in the area of forensic
evidence,168 and also ‘that judges be given an annual update on scientific developments of
relevance to the courts’.169 Indeed, the Committee went so far as to
recommend that the Home Office issue a consultation on the development of a cadre of
lawyers and judges with specialist understanding of specific areas of forensic evidence.
An additional benefit to this would be the creation of a small group of judges and prosecu-
tion and defence lawyers with the ability and current knowledge to act as mentors to their
peers when required.170

6  ‘Battles of Experts’ and the Presentation of Expert Evidence

Presentation of expert evidence171 in the form of a written report is the norm in civil cases.
Rule 35.5(1) of the Civil Procedure Rules provides: ‘Expert evidence is to be given in a
written report unless the court directs otherwise.’ Rule 35.10 provides:
(2) At the end of an expert’s report there must be a statement that the expert under-
stands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether
written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged against disclo-
sure but the court will not, in relation to those instructions—
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the
expert,

167  House of Commons Science and Technology Committee, Forensic Science on Trial (Seventh Report of

Session 2004–05) (HC 96-I) (2005) [170] (italics in original, bold font removed).
168  House of Commons Science and Technology Committee, Forensic Science on Trial (Seventh Report

of Session 2004–05) (HC 96-I) (2005) [180] (bold font removed): ‘While we have no particular complaints
about the quality of the guidance available to lawyers on the understanding and presentation of forensic
evidence, it is of great concern that there is currently no mandatory training for lawyers in this area. In view
of the increasingly important role played by DNA and other forensic evidence in criminal investigations,
it is wholly inadequate to rely on the interest and self-motivation of the legal profession to take advantage
of the training on offer. We recommend that the Bar make a minimum level of training and continuing
professional development in forensic evidence compulsory.’
169  House of Commons Science and Technology Committee, Forensic Science on Trial (Seventh Report of

Session 2004–05) (HC 96-I) (2005) [182] (bold font removed).

170  House of Commons Science and Technology Committee, Forensic Science on Trial (Seventh Report of

Session 2004–05) (HC 96-I) (2005) [184] (bold font removed). See also A Wilson, ‘Expert Testimony in the
Dock’ (2005) 69 Journal of Criminal Law 330, 346.
171  See generally L Meintjes-Van der Walt, ‘Expert Odyssey: Thoughts on the Presentation and Evaluation

of Scientific Evidence’ (2003) 120 South African Law Journal 352; L Meintjes-van der Walt, Expert Evidence
in the Criminal Justice Process: A Comparative Perspective (2001) Ch 6.
‘Battles of Experts’ and the Presentation of Expert E vidence 347

unless it is satisfied that there are reasonable grounds to consider the statement of
instructions given under paragraph (3) to be inaccurate or incomplete.172
Rule 33.4 of the Criminal Procedure Rules 2014 provides that
an expert’s report must—
(a) give details of the expert’s qualifications, relevant experience and accreditation;
(b) give details of any literature or other information which the expert has relied on in
making the report;
(c) contain a statement setting out the substance of all facts given to the expert which
are material to the opinions expressed in the report, or upon which those opinions
are based;
(d) make clear which of the facts stated in the report are within the expert’s own
knowledge;
(e) say who carried out any examination, measurement, test or experiment which the
expert has used for the report and—
(i) give the qualifications, relevant experience and accreditation of that person,
(ii) say whether or not the examination, measurement, test or experiment was car-
ried out under the expert’s supervision, and
(iii) summarise the findings on which the expert relies;
(f) where there is a range of opinion on the matters dealt with in the report—
(i) summarise the range of opinion, and
(ii) give reasons for the expert’s own opinion;
(g) if the expert is not able to give an opinion without qualification, state the qualification;
(h) include such information as the court may need to decide whether the expert’s opin-
ion is sufficiently reliable to be admissible as evidence;
(i) contain a summary of the conclusions reached;
(j) contain a statement that the expert understands an expert’s duty to the court, and
has complied and will continue to comply with that duty; and
(k) contain the same declaration of truth as a witness statement.
In criminal cases reports by experts are admissible in evidence in accordance with
section 30 of the Criminal Justice Act 1988:
(1) An expert report shall be admissible as evidence in criminal proceedings,
whether or not the person making it attends to give oral evidence in those
proceedings.
(2) If it is proposed that the person making the report shall not give oral evidence,
the report shall only be admissible with the leave of the court.
(3) For the purpose of determining whether to give leave the court shall have
regard—
(a) to the contents of the report;

172  See generally P Cooper, ‘Telling it like it Is’ (2005) 155 New Law Journal 1765; P Creffield, ‘Medical

Evidence’ (2003) 153 New Law Journal 1160; C Phipps, ‘Being Frank with Experts’ (2000) 144 Solicitors’
Journal 90; B Thompson, ‘How to Write an Expert Report’ (2004) 154 New Law Journal 808.
348
Expert E vidence

(b) to the reasons why it is proposed that the person making the report shall not give
oral evidence;
(c) to any risk, having regard in particular to whether it is likely to be possible to
controvert statements in the report if the person making it does not attend to
give oral evidence in the proceedings, that its admission or exclusion will result
in unfairness to the accused or, if there is more than one, to any of them; and
(d) to any other circumstances that appear to the court to be relevant.
(4) An expert report, when admitted, shall be evidence of any fact or opinion of which
the person making it could have given oral evidence. . . .
(5) In this section ‘expert report’ means a written report by a person dealing wholly or
mainly with matters on which he is (or would if living be) qualified to give expert
evidence.
The use of single joint experts in civil cases is addressed in rule 35.7 of the Civil
Procedure Rules:
(1) Where two or more parties wish to submit expert evidence on a particular issue,
the court may direct that the evidence on that issue is to be given by a single joint
expert.
(2) Where the parties who wish to submit the evidence (‘the relevant parties’) cannot
agree who should be the single joint expert, the court may—
(a) select the expert from a list prepared or identified by the relevant parties; or
(b) direct that the expert be selected in such other manner as the court may direct.173
Any relevant party may give instructions to a single joint expert,174 but ‘must, at the same
time, send a copy to the other relevant parties’.175
Rule 33.7 of the Criminal Procedure Rules 2014 provides:
(1) Where more than one defendant wants to introduce expert evidence on an issue
at trial, the court may direct that the evidence on that issue is to be given by one
expert only.
(2) Where the co-defendants cannot agree who should be the expert, the court may—
(a) select the expert from a list prepared or identified by them; or
(b) direct that the expert be selected in another way.
Each co-defendant may give instructions to a single joint expert,176 but ‘must, at the same
time, send a copy of the instructions to each other co-defendant’.177
The Runciman Royal Commission devoted considerable attention to the issue of expert
evidence in criminal cases, making a large number of suggestions for reform. The follow-
ing are some of the Commission’s recommendations pertaining to the presentation of
expert evidence:

173  See generally B Braithwaite, ‘A Case of Two Experts Are Better than One’, The Times, 1 June 2004,

Law, 4; M Cohen, ‘Single Joint Experts:  Surveying the Results’ (2003) 153 New Law Journal 306; M
Cohen, ‘To Meet or Not to Meet?’ (2001) 151 New Law Journal 761; G L Davies, ‘Current Issues—Expert
Evidence:  Court Appointed Experts’ (2004) 23 Civil Justice Quarterly 367; R Jacob, ‘Court-Appointed
Experts v Party Experts: Which is Better?’ (2004) 23 Civil Justice Quarterly 400; J A Jolowicz, ‘A Note on
Experts’ (2004) 23 Civil Justice Quarterly 408; B Thompson, ‘The Problem with Single Joint Experts’ (2004)
154 New Law Journal 1134.
174  Rule 35.8(1). 175  Rule 35.8(2). 176  Rule 33.8(1). 177  Rule 33.8(2).
‘Battles of Experts’ and the Presentation of Expert E vidence 349

71.  . . . we recommend that far more use is made of written summaries of such expert evi-
dence as is not contested. All too often, expert evidence is given orally by witnesses in order,
it would seem, to enhance the value of the evidence in the eyes of the jury. But where the
defence have agreed the evidence, there should be no question of cross-examination and the
attendance of the witness and his or her appearance in the box is unnecessary . . . We there-
fore recommend that, where the expert evidence is agreed, it should be presented to the jury
as clearly as possible, normally by written statement. It would be for counsel to speak to such
a statement in their opening and closing speeches.
72.  Where the evidence is in dispute and the expert witness goes into the witness box, his
or her evidence can often be greatly assisted by the use of visual and other technical aids and
we recommend that these are used wherever possible . . .
73.  . . . many experts feel that they are not always given a proper opportunity to explain
what the scientific evidence really means. This may be because counsel stop short of asking
vital questions from lack of scientific knowledge or inadequate briefing or because they make
inadequate use of the opportunity to re-examine after cross-examination or because they do
not want the answer to be heard. We recommend that trial judges, where the evidence is dis-
puted, ask expert witnesses before they leave the witness box whether there is anything else
that they wish to say. To avoid inadmissible evidence being heard, the judge should put this
question in the absence of the jury and, if the expert witness does indicate a wish to clarify
the evidence, it should be heard before the jury returns. If the judge is satisfied that there
can be no objection to the evidence, it should be put before the jury. Expert witnesses should
on the same basis be readier to ask the judge to be allowed to add to what they have said in
examination or cross-examination in order to make themselves clear. They might best do
this by telling their solicitor on leaving the witness box that they wish to clarify the evidence
just given. The solicitor would be under an obligation to inform counsel and counsel to tell
the judge. The judge would then explore the admissibility of the evidence in the absence of
the jury as we propose above and, if appropriate, the witness would be recalled to clarify the
earlier evidence.178
It is arguable that the adversarial mode of trial is not well suited to the determination of
questions pertaining to expert evidence.179 Contrary to popular belief, there is often no
objective ‘truth’ to be discovered in matters of science; it cannot be said that to choose
between the evidence of two opposing expert witnesses is necessarily to choose between
objectively ‘correct’ and objectively ‘incorrect’ evidence. ‘Disagreement plays an inevita-
ble role in science, just as it does in law.’180 Partly for this reason, it may be suggested—the
possibility of the appointment of a single joint expert notwithstanding—that a more sys-
tematic system of court experts should be introduced in England and Wales. The Law
Commission recommended that, ‘where the Crown Court has to determine whether
expert opinion evidence which a party proposes to adduce in a trial on indictment is suf-
ficiently reliable to be admitted’,181

Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 159–60.

178 
179 See
generally P Alldridge, ‘Scientific Expertise and Comparative Criminal Procedure’ (1999) 3
International Journal of Evidence and Proof 141.
180  M Redmayne, ‘Expert Evidence and Scientific Disagreement’ (1997) 30 UC Davis Law Review

1027, 1080. It has been noted, in relation to medical evidence, that ‘the law often stubbornly fails to
recognise uncertainty in medical knowledge and practice’, and that the validity even of honest medical
disagreement may not be accepted: B Mahendra, ‘When Experts Seem to Disagree’ (1997) 147 New Law
Journal 637, 638.
181 Draft Criminal Evidence (Experts) Bill, cl 9(1), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

350
Expert E vidence

the court may appoint another expert to help it determine that question if satisfied that it
would be in the interests of justice to do so, having regard to—
(a) the likely importance of the evidence in the context of the case as a whole,
(b) the complexity of the evidence or of the question of its reliability, and
(c) any other relevant considerations.182
Additionally:
The other expert must be a person nominated for the purpose of the particular proceedings—
(a) by a selection panel established by the Lord Chancellor, and
(b) in accordance with any procedure specified by the Lord Chancellor.183
This is an idea which has precipitated considerable debate over the years, having not found
favour with the Runciman Royal Commission in 1993.184 Likewise, the Government has
rejected the Law Commission’s recommendations.185
Any fear that the use of court experts may result in great weight being placed by the
jury on evidence which may be no more reliable than evidence given by experts called
by the parties may well be unjustified. The point, as Alldridge succinctly puts it, is surely
that ‘court-appointed witnesses should carry more weight, because there is every reason
to believe that their evidence will be better evidence’.186 Court experts are common in
Continental jurisdictions. For example, the French system of court experts, as described
by Spencer in 1992, seeks to eliminate the ‘battle of the experts’ in the courtroom by
emphasizing consensualism rather than confrontation. In order to be eligible to serve
the court in a particular case, court experts have to be licensed. The juge d’instruction
typically makes the decision about whether an expert is to be appointed, and if so which
expert. In most cases, a single expert will be appointed, although there will often be a panel
in difficult cases. On completion, the expert’s report is delivered to the juge d’instruction
for communication to the parties, who may ask the juge d’instruction to direct the expert
to perform further tests or provide more information, or to appoint another expert for a
second opinion.187

182
  Draft Criminal Evidence (Experts) Bill, cl 9(2), in Law Commission (Law Com No 325), Expert
Evidence in Criminal Proceedings in England and Wales (2011).
183  Draft Criminal Evidence (Experts) Bill, cl 9(3), in Law Commission (Law Com No 325), Expert

Evidence in Criminal Proceedings in England and Wales (2011).

184  Royal Commission on Criminal Justice, Report (Cm 2263, 1993) 160.
185  Ministry of Justice, The Government’s Response to the Law Commission Report: ‘Expert Evidence in

Criminal Proceedings in England and Wales’ (Law Com No 325) (2013).

186  P Alldridge, ‘Forensic Science and Expert Evidence’ (1994) 21 Journal of Law and Society 136,

142 (italics added). Cf P Roberts, ‘Forensic Science Evidence after Runciman’ [1994] Criminal Law Review
780, 788–91.
187  J R Spencer, ‘Court Experts and Expert Witnesses: Have We a Lesson to Learn from the French?’

(1992) 45 Current Legal Problems 213. See also S Magnusson, ‘Experts on the Bench—Reflections on
Pragmatic Solutions from Up-North’ (2009) 28 Civil Justice Quarterly 261; R Verkerk, ‘Comparative
Aspects of Expert Evidence in Civil Litigation’ (2009) 13 International Journal of Evidence and Proof 167.
Note too the interesting suggestion that procedures based on a ‘didactic’ approach to the presentation
of expert evidence be introduced: E J Imwinkelried, ‘The Next Step in Conceptualizing the Presentation
of Expert Evidence as Education:  The Case for Didactic Trial Procedures’ (1997) 1(2) International
Journal of Evidence and Proof 128, 132. For criticism, see G Edmond, ‘The Next Step or Moonwalking?
Expert Evidence, the Public Understanding of Science and the Case against Imwinkelried’s Didactic
Trial Procedures’ (1998) 2 International Journal of Evidence and Proof 13. See also Imwinkelried’s
response:  E Imwinkelried, ‘Didactic Trial Procedures’ (1998) 2 International Journal of Evidence and
Proof 205.
‘Battles of Experts’ and the Presentation of Expert E vidence 351

A further option for consideration might be the concurrent presentation of expert evi-
dence in a ‘hot-tubbing’ procedure. As Edmond explains:
Concurrent evidence enables experts from similar or closely related fields to testify dur-
ing a joint session. The openings of these sessions tend to be more informal than the
examination-in-chief and cross-examination associated with the conventional adver-
sarial trial. Significantly, for at least part of their testimony, experts are freed from the
constraints of formally responding to lawyers’ questions. During concurrent evidence
sessions expert witnesses are presented with an opportunity to make extended state-
ments, comment on the evidence of the other expert witnesses, and are often encouraged
to ask each other questions.188
Finally, it is notable that the Court of Appeal in R v Cannings appeared to suggest that, in
a criminal case turning on a fundamental ‘battle of the experts’, it might be inappropriate
for the prosecution to continue or even to have been brought:
where a full investigation into two or more sudden unexplained infant deaths in the
same family is followed by a serious disagreement between reputable experts about
the cause of death, and a body of such expert opinion concludes that natural causes,
whether explained or unexplained, cannot be excluded as a reasonable (and not a fanci-
ful) possibility, the prosecution of a parent or parents for murder should not be started,
or continued, unless there is additional cogent evidence, extraneous to the expert evi-
dence, . . . which tends to support the conclusion that the infant, or where there is more
than one death, one of the infants, was deliberately harmed. In cases like the present, if
the outcome of the trial depends exclusively or almost exclusively on a serious disagree-
ment between distinguished and reputable experts, it will often be unwise, and therefore
unsafe, to proceed.189
In its subsequent decision in R v Anthony the Court of Appeal was careful, however, to
sound the following note of caution:
Properly understood Cannings is not authority for the bare proposition that a dispute
between reputable experts in a specialist field should produce an acquittal. . . . care must
be taken not to transpose judicial comment on matters of evidence in the Cannings case
into formal judicial precedent in a different case where the combined effect of the evi-
dence, whether extraneous to or linked with or arising from the medical evidence, is
different.190

188  G Edmond, ‘Secrets of the “Hot Tub”: Expert Witnesses, Concurrent Evidence and Judge-Led Law

Reform in Australia’ (2008) 27 Civil Justice Quarterly 51, 55. See also J Ames, ‘Hot-Tubbing:  Cutting
Costs and Time’, The Times, 10 Mar 2011 (online); D Dabbs, ‘Experts in the Hot-Tub’ (2009) 159 New
Law Journal 1632; H Genn, ‘Getting to the Truth: Experts and Judges in the “Hot Tub”’ (2013) 32 Civil
Justice Quarterly 275; G Hain, ‘Jackson and “Hot Tubbing”’ (2010) 160 New Law Journal 316; C Pamplin,
‘The Heat Is On’ (2012) 162 New Law Journal 967; M Solon, ‘Experts in Hot Water’ (2012) 162 New
Law Journal 874; M Solon, ‘In Hot Water?’ (2013) 163 New Law Journal 76; N Wilson, ‘Concurrent and
Court-Appointed Experts? From Wigmore’s “Golgotha” to Woolf ’s “Proportionate Consensus”’ (2013)
32 Civil Justice Quarterly 493. Speaking extra-judicially, Lord Neuberger has remarked (D Neuberger,
‘Expert Witnesses’, Annual Bond Solon Expert Witness Conference, 7 Nov 2014, at [31]): ‘At least in some
cases, I can see much for hot-tubbing or concurrent evidence as it is more respectably, if less evocatively,
known. . . . Of course, . . . it would be wrong to form any sort of clear view that we should either avoid,
or go over to, hot-tubbing generally, until we have gathered a statistically meaningful number of cases
with hot-tubbing experts, and a statistically meaningful number of cases where the normal adversarial
approach is adopted. With such evidence it should be possible to assess the relative merits of the adver-
sarial and hot tubbing systems.’
189  [2004] EWCA Crim 01, [2004] 2 Cr App R 7 at [178]. 190  [2005] EWCA Crim 952 at [81].
352
Expert E vidence

Likewise, in R v Kai-Whitewind, the Court of Appeal emphatically dissociated itself

from the view
that whenever there is a conflict between expert witnesses the case for the prosecution must
fail unless the conviction is justified by evidence independent of the expert witnesses. . . .
In Cannings there was essentially no evidence beyond the inferences based on coinci-
dence which the experts for the Crown were prepared to draw. Other reputable experts
in the same specialist field took a different view about the inferences, if any, which could
or should be drawn. Hence the need for additional cogent evidence. With additional evi-
dence, the jury would have been in a position to evaluate the respective arguments and
counter-arguments: without it, in cases like Cannings, they would not.191

7  Disclosure of Expert Evidence

In civil cases, rule 35.13 of the Civil Procedure Rules provides: ‘A party who fails to disclose
an expert’s report may not use the report at the trial or call the expert to give evidence
orally unless the court gives permission.’ Rule 35.11 provides: ‘Where a party has disclosed
an expert’s report, any party may use that expert’s report as evidence at the trial.’
In criminal cases, a party wanting to introduce expert evidence otherwise than as
admitted fact must serve an expert’s report on all other parties192 as soon as practicable,193
along with ‘notice of anything of which the party serving it is aware which might reason-
ably be thought capable of detracting substantially from the credibility of that expert’,194
and must, ‘if another party so requires, give that party a copy of, or a reasonable oppor-
tunity to inspect[,]‌(i) a record of any examination, measurement, test or experiment on
which the expert’s findings and opinion are based, or that were carried out in the course
of reaching those findings and opinion, and (ii) anything on which any such examination,
measurement, test or experiment was carried out’.195 Non-compliance with these require-
ments will disentitle the party from introducing the expert evidence unless the parties so
agree or the court so directs.196

8  Evaluation of Expert Evidence

Evaluation of expert opinion evidence197 is considered strictly to be within the province
of the trier of fact. In R v Stockwell it was stressed that ‘the judge should make clear to
the jury that they are not bound by the expert’s opinion, and that the issue is for them to
decide’,198 and in Dover District Council v Sherred that a county court judge ‘is not bound

191  [2005] EWCA Crim 1092, [2005] 2 Cr App R 31 at [84]–[85]. See generally J Hartshorne and J Miola,

‘Expert Evidence: Difficulties and Solutions in Prosecutions for Infant Harm’ (2010) 30 Legal Studies 279.
192  Criminal Procedure Rules 2014, rule 33.3(3)(a)(ii).
193  Criminal Procedure Rules 2014, rule 33.3(3)(b).
194  Criminal Procedure Rules 2014, rule 33.3(3)(c).
195  Criminal Procedure Rules 2014, rule 33.3(3)(d).
196  Criminal Procedure Rules 2014, rule 33.3(4).
197  See generally L Meintjes-Van der Walt, ‘Expert Odyssey: Thoughts on the Presentation and Evaluation

of Scientific Evidence’ (2003) 120 South African Law Journal 352.

198  (1993) 97 Cr App R 260, 266. See also R (Hackney LBC) v Rottenberg [2007] EWHC 166 (Admin), [2007]

Env LR 24 at [20]: ‘Just as in the Crown Court, where it is well-established by Stockwell and other cases that a
jury is not obliged to accept the evidence of any particular witness, including that of an expert witness, even
if unchallenged by other experts; so also are a judge and justices sitting on appeal from a Magistrates’ Court.’
Summary and Conclusion 353

to accept the evidence even of an expert witness, if there is a proper basis for rejecting it
in the other evidence which he has heard, or the expert evidence is such that he does not
believe it or for whatever reason is not convinced by it’.199 Thus the House of Lords has
noted that
a court is not bound to hold that a defendant doctor escapes liability for negligent treat-
ment or diagnosis just because he leads evidence from a number of medical experts who
are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound
medical practice. . . . the court has to be satisfied that the exponents of the body of opinion
relied on can demonstrate that such opinion has a logical basis. In particular, in cases
involving, as they so often do, the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible, reasonable or respectable, will need
to be satisfied that, in forming their views, the experts have directed their minds to the
question of comparative risks and benefits and have reached a defensible conclusion on
the matter.200
On the other hand, however, ‘it will very seldom be right for a judge to reach the con-
clusion that views genuinely held by a competent medical expert are unreasonable. The
assessment of medical risks and benefits is a matter of clinical judgment which a judge
would not normally be able to make without expert evidence.’201
In R v Henderson, the Court of Appeal provided guidance on how a jury might be
directed in a case involving an allegation that a baby had died as a result of being shaken
by the defendant:
There are two features of the content of a summing-up in cases such as these which,
we suggest, are important. First, a realistic possibility of an unknown cause must not
be overlooked. In cases where that possibility is realistic, the jury should be reminded
of that possibility. They should be instructed that unless the evidence leads them to
exclude any realistic possibility of an unknown cause they cannot convict. In cases
where it is relevant to do so, they should be reminded that medical science develops
and that which was previously thought unknown may subsequently be recognised and
acknowledged. . . . In cases where developing medical science is relevant, the jury should
be reminded that special caution is needed where expert opinion evidence is fundamen-
tal to the prosecution . . .
Second, the jury need directions as to how they should approach conflicting expert
evidence. . . . a jury needs to be directed as to the pointers to reliable evidence and
the basis for distinguishing that which may be relied upon and that which should be
rejected.202

9  Summary and Conclusion

The law relating to the admissibility of expert opinion evidence has tended to attract
criticism for two primary reasons. First, it has been argued that it is unduly restrictive

199  (1997) 29 HLR 864, 867.

200  Bolitho v City and Hackney HA [1997] 4 All ER 771, 778. See also Armstrong v First York Ltd [2005]
EWCA Civ 277, [2005] 1 WLR 2751 at [27]: ‘there is no principle of law that an expert’s evidence in an unu-
sual field . . . must be dispositive of liability in such a case’.
201  Bolitho v City and Hackney HA [1997] 4 All ER 771, 779. See also Carib Steel v Price Waterhouse [2013]

UKPC 18, [2013] 4 All ER 338 at [46].

202  [2010] EWCA Crim 1269, [2010] 2 Cr App R 24 at [217]–[218]. See generally D Tuerkheimer, Flawed

Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice (2014).

354
Expert E vidence

to limit the admissibility of such evidence to situations where the trier of fact is deemed
to be unable to determine the issue in question without expert assistance. Secondly, the
absence of any rule akin to rule 702 of the Federal Rules of Evidence in the United States
may have led in some cases to the admission of expert evidence of doubtful reliability.
The law has recognized the potential for expert witnesses to become partisan rather than
discharging their duty to the court, but whether attempts to deal with this problem (such
as the introduction of relevant provisions in the Civil Procedure Rules and the Criminal
Procedure Rules) will prove effective is questionable. Much debate also surrounds the
issue of presentation of expert evidence. The Court of Appeal has made strong statements
on, for example, the need for careful directions to be given to the jury where expert opin-
ion evidence of a controversial nature is at issue, but fundamental reform has not been
forthcoming. The Government has rejected the Law Commission’s recommendation that,
in appropriate cases, a formal requirement that expert opinion evidence be demonstrated
to be sufficiently reliable to be admitted should be introduced.

Further Reading
D Dwyer, ‘The Role of the Expert under CPR Pt 35’ in D Dwyer (ed), The Civil Procedure Rules
Ten Years On (2009)
G Edmond, ‘The “Science” of Miscarriages of Justice’ (2014) 37 University of New South Wales
Law Journal 376
P Roberts (ed), Expert Evidence and Scientific Proof in Criminal Trials (2014)
13
Witnesses

Growing attention is being paid by the law of evidence to the experiences of witnesses
both in and out of court.1 Three broad issues pertaining to witnesses are examined in this
chapter. First, we consider whether certain categories of persons may be incompetent to
testify, or, even if competent to testify, may not be compellable to do so. We then exam-
ine the relaxation of the rules on corroboration, and the emergence of a more contem-
porary approach to possibly unreliable witnesses. Finally, we investigate the availability
and adequacy of any special measures or procedures for easing the burden on testifying
witnesses.

1  Competence
It has long been the general rule that any person is competent to testify (that is, is permit-
ted to testify if he or she wishes to do so).2

1
  See, eg, O Bowcott, ‘Call to Reform Rules on Cross-Examining Children’, The Guardian, 12 Sept
2013 (online); O Bowcott, ‘Crime Victims Should Have Better Support, Says New Top Prosecutor’, The
Guardian, 4 Nov 2013 (online); ‘Call for Review of Rape Complainants’ Treatment after Woman’s Death’,
The Guardian, 4 Feb 2014 (online); M Castle, ‘Giving Victims a Fair Hearing’ (2014) 111(36) Law Society’s
Gazette 8; ‘DPP to Examine Treatment of Witnesses after Abuse Victim’s Death’, The Guardian, 27 July
2014 (online); Editorial, ‘A Long Way to Go in Our Response to Sex Crimes’, The Independent, 10 Jan
2013 (online); L Harris, ‘The Victims’ Code—A Lack of Substance or a Victory for Victims?’ (2013) 177
Criminal Law and Justice Weekly 745; B Kenber, ‘Tragedy Prompts Call for Rape Case Changes’, The
Times, 5 Feb 2014 (online); S Laville, ‘Witnesses Should Be Respected. The System Would Collapse with-
out Them’, The Guardian, 30 Sept 2013 (online); S Laville, ‘Witnesses Tell of Feeling Abandoned and
Uninformed in Criminal Court Cases’, The Guardian, 30 Sept 2013 (online); A Norfolk, ‘Girl, 17, Tried to
Kill Herself after Ordeal at Sex Trial’, The Times, 6 Aug 2013 (online); A Norfolk, ‘Suicide Fears Prompt
Demand for Courts to Be Softer on Victims’, The Times, 6 June 2013 (online); S O’Neill, ‘It’s Time to
Pay for Cruel Treatment of the Vulnerable, Courts Are Told’, The Times, 15 July 2013 (online); M Scott,
‘How to Help Victims through Ordeal of Trial’, The Times, 14 Feb 2013 (online); F Yeoman, ‘Why Rape
Convictions Are So Hard to Get’, The Independent, 10 Jan 2013 (online); Ministry of Justice, Code of
Practice for Victims of Crime (2013); Ministry of Justice, Our Commitment to Victims (2014); Ministry
of Justice, Report on Review of Ways to Reduce Distress of Victims in Trials of Sexual Violence (2014);
Ministry of Justice, Transforming the Criminal Justice System: Strategy and Action Plan—Implementation
Update (2014) 10–13.
2  This was not always the case:  see generally C J W Allen, The Law of Evidence in Victorian England

(1997) Chs 3 and 4.

356
Witnesses

1.1  Criminal Cases: General Principles

For criminal proceedings the general rule of universal competence is expressed in the
Youth Justice and Criminal Evidence Act 1999, 3 but is specifically provided to be subject
to two exceptions. First, a defendant is not competent to testify for the prosecution4 unless
he or she ‘is not, or is no longer, liable to be convicted of any offence in the proceedings
(whether as a result of pleading guilty or for any other reason)’.5 Secondly, a person is not
competent to testify if it appears to the court that he or she is unable to give intelligible
testimony. The ability to give intelligible testimony is the ability to ‘(a) understand ques-
tions put to him as a witness, and (b) give answers to them which can be understood’.6
Where a question is raised (either by a party7 or by the court8) about the competence of a
witness, section 54 makes a number of relevant provisions:
(2) It is for the party calling the witness to satisfy the court that, on a balance of prob-
abilities, the witness is competent to give evidence in the proceedings. . . .
(4) Any proceedings held for the determination of the question shall take place in the
absence of the jury (if there is one).
(5) Expert evidence may be received on the question.
(6) Any questioning of the witness (where the court considers that necessary) shall be
conducted by the court in the presence of the parties.
In R v MacPherson the Court of Appeal set out clearly a number of propositions relevant
to the determination of competence:
• ‘In the ordinary way [the] issue should be determined before the witness is sworn, usu-
ally as a preliminary issue at the start of the trial.’9
• ‘the issue  . . . is one of understanding, that is to say: can the witness understand what is
being asked and can the jury understand that witness’s answers?’10
• ‘the words “put to him as a witness” mean the equivalent of being “asked of him in
court”. So, it would be the case that an infant who can only communicate in baby lan-
guage with its mother would not ordinarily be competent. But a young child  . . . who
can speak and understand basic English with strangers would be competent.’11
• ‘there is no requirement in the Act (which is commendably clear in its language) that
the witness in question should be aware of his status as a witness. Questions of cred-
ibility and reliability are not relevant to competence. Those matters go to the weight
of the evidence and might be considered, if appropriate, at the end of the prosecution
case, by way of a submission of no case to answer.’12
• ‘a child should not be found incompetent on the basis of age alone and the question of
competence can be kept under review.’13

3 S 53(1). 4 S 53(4). 5  S 53(5). See R v McEwan [2011] EWCA Crim 1026.

6 S 53(3). 7  S 54(1)(a). 8  S 54(1)(b).
9  [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 at [25].
10  [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 at [26].
11  [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 at [27].
12  [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 at [29].
13  [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 at [31]. See also R v Malicki [2009] EWCA Crim

365; R v B [2010] EWCA Crim 4 (on which see generally P Cooper and D Wurtzel, ‘R v Barker’ (2010)
174 Criminal Law and Justice Weekly 85; P Cooper and D Wurtzel, ‘Through the Eyes of a Child’ [Mar
2010] Counsel 27; E Henderson, ‘Root or Branch? Reforming the Cross-Examination of Children’ [2010]
Cambridge Law Journal 460; S Krähenbühl, ‘Child Testimony’ [Mar 2012] Counsel 30; B Newton, ‘A Matter
Compe tence 357

That it may be important to reconsider a determination of competence was reiterated in

R v Powell, where the Court of Appeal noted that ‘the judge should have reconsidered
the question whether the complainant was a competent witness at the conclusion of the
complainant’s evidence. Had she done so she would, or should, have concluded that she
was not and then withdrawn the case from the jury.’14

1.2  Sworn and Unsworn Evidence

A witness gives sworn evidence after taking an oath (or making a solemn affirmation).15
The manner in which an oath16 is administered and taken is prescribed by section 1
of the Oaths Act 1978. A person objecting to being sworn may instead make a solemn
affirmation,17 which will ‘be of the same force and effect as an oath’.18 Where an oath
has been duly administered and taken, its validity will not be affected by the fact that
the person taking it had no religious belief at the time.19 Nor will an oath be invalid
simply because, for example, it was taken by a Muslim on the New Testament: what
matters is that the oath is one which appears to the court to be binding on the wit-
ness’s conscience, and, more importantly, one ‘which the witness himself considers to
be binding upon his conscience’.20 The offence of perjury is committed where a person
sworn as a witness wilfully makes a statement which he or she knows to be false or does
not believe to be true.21
In criminal proceedings, a witness under the age of 14 cannot be sworn.22 A witness
who has reached the age of 14 can be sworn if ‘he has a sufficient appreciation of the
solemnity of the occasion and of the particular responsibility to tell the truth which is
involved in taking an oath’.23 A witness who is able to give intelligible testimony is to ‘be
presumed to have a sufficient appreciation of those matters if no evidence tending to show
the contrary is adduced (by any party)’.24 If, however, such evidence were to be adduced,
‘it is for the party seeking to have the witness sworn to satisfy the court that, on a balance
of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of
the [relevant] matters’.25 The determination of whether a witness may be sworn is to ‘take
place in the absence of the jury (if there is one)’,26 but where any questioning of the witness
is considered necessary by the court this is to ‘be conducted by the court in the presence

of Time’, Solicitors’ Journal, 2 Mar 2010 (online); A Turner, ‘Children’s Evidence’ (2010) 174 Criminal Law
and Justice Weekly 66; C Wigin, ‘Child Q: England’s Youngest Witness’ [July 2012] Counsel 24; D Wurtzel,
‘The Youngest Witness in a Murder Trial: Making It Possible for Very Young Children to Give Evidence’
[2014] Criminal Law Review 893).
14  [2006] EWCA Crim 3, [2006] 1 Cr App R 31 at [34].
15  See generally R Arshad, ‘Making the Right Choice?’ [June 2012] Counsel 27; G Rothschild, ‘Ensuring
Due Formality’ [Apr 2014] Counsel 17.
16  For a critical view of oaths, see L James, ‘Oaths and Religious Privilege’ (1997) 161 Justice of the Peace

998, and, for a historical perspective, J Jepson, ‘I Swear by Almighty God’ [2009] 4 Criminal Bar Quarterly
17. It has been noted that ‘the view that one will go to hell for lying on oath has probably almost completely
disappeared and with it a strong reason for telling the truth’: P W Young, ‘Oaths and the Truth’ (2014) 88
Australian Law Journal 223, 224.
17  Oaths Act 1978, s 5(1).
18  S 5(4). It may be argued that it may be more appropriate in contemporary society for all witnesses to

make solemn affirmations: J Carter, ‘Affirmation for All?’ (2003) 167 Justice of the Peace 464. See also T
Gleeson, ‘I Swear by Almighty God—but I’m not Sure Why’ (2005) 169 Justice of the Peace 450; D Pannick,
‘Oaths, Religious or Not, Are a Statement that You Are Telling the Truth’, The Times, 24 Oct 2013 (online);
M Solon, ‘Swearing in Court’ (2013) 163 New Law Journal 7.
19 S 4(2). 20  R v Kemble [1990] 1 WLR 1111, 1114. 21  Perjury Act 1911, s 1.
22  Youth Justice and Criminal Evidence Act 1999, s 55(2)(a). 23  S 55(2)(b). 24 S 55(3).
25 S 55(4). 26 S 55(5).
358
Witnesses

of the parties’.27 Expert evidence may be received on the question of whether a witness
may be sworn.28
In a criminal case a person of whatever age who is competent to testify29 but may not
be sworn30 is to give unsworn evidence,31 which has the same effect as sworn evidence:
‘A deposition of unsworn evidence . . . may be taken for the purposes of criminal proceed-
ings as if that evidence had been given on oath.’32 It is an offence to give false unsworn
evidence in circumstances in which, had the evidence been given on oath, the person
would have been guilty of perjury.33
In civil cases, the effect of section 96 of the Children Act 1989 is as follows. A child
(defined as someone under the age of 18)34 who understands the nature of an oath must
give sworn evidence. A child who does not understand the nature of an oath may give
unsworn evidence if ‘he understands that it is his duty to speak the truth’35 and ‘has
sufficient understanding to justify his evidence being heard’.36

2  Compellability
Any person competent to testify is considered, as a general rule, to be compellable to do
so. A number of exceptions to this will be considered in Sections 2.1, 2.2, 2.3, 2.4, and 2.5.
A compellable witness’s refusal to testify may constitute contempt of court:
The role of the courts, in seeking to provide the public with protection against criminal
conduct, can only properly be performed if members of the public co-operate with the
courts. That co-operation includes participation in the trial process, sometimes as a juror,
sometimes as a witness. Witnesses who may have important evidence to give must come
to court if they are summoned, that is, formally directed to do so. If they choose to ignore
a summons, they are in contempt of court and can expect to be punished because their
failure to attend is likely to disrupt the trial process and, in some cases, to undermine it
entirely.37
It is important to note, however, that the fact that a person is compellable to testify does
not mean that he or she will necessarily be compelled to testify. A court has a discretion
about whether to order the attendance of a potential witness, and may, in the exercise of
this discretion, decline to authorize the issue of a witness summons if it would be oppres-
sive to do so.38

2.1  The Accused in a Criminal Case

2.1.1  Testifying in his or her own Defence
The Criminal Evidence Act 1898 made accused persons competent to testify in their own
defence for the first time.39 The incompetence of accused persons as defence witnesses
prior to this was premised on the specious assumption that they would only perjure

27 S 55(7). 28 S 55(6). 29  S 56(1)(a). 30  S 56(1)(b). 31 S 56(2).

32 S 56(3). 33 S 57. 34  S 105(1). 35  S 96(2)(a). 36  S 96(2)(b).
37  R v Yusuf [2003] EWCA Crim 1488, [2003] 2 Cr App R 32 at [16]. See also Judge Denyer, ‘Sentencing for

Contempt where the Witness Refuses to Give Evidence’ [2012] 9 Archbold Review 7.
38  Re P (Witness Summons) [1997] 2 FLR 447. See also Re M (A Child) (Care Proceedings:  Witness

Summons) [2007] EWCA Civ 9, [2007] 1 FCR 253; In re W (Children) (Family Proceedings: Evidence) [2010]
UKSC 12, [2010] 1 WLR 701.
39  S 1. See generally C J W Allen, The Law of Evidence in Victorian England (1997) Ch 5.
Compell abilit y 359

themselves if permitted to testify.40 By testifying,41 an accused becomes liable to be

cross-examined by the prosecution as well as by any co-accused, even if he or she has not
actually given evidence against that co-accused.42 It is also noteworthy that the prosecu-
tion may use evidence elicited from a testifying accused (both in evidence-in-chief 43 and
in cross-examination44) against any co-accused.
The Criminal Evidence Act 1898 provides that a testifying accused ‘shall, unless other­
wise ordered by the court, give his evidence from the witness box or other place from
which the other witnesses give their evidence’.45 It has been held that there must be good
reason for any departure from the general rule. ‘There may be cases in which a prisoner is
so infirm that he cannot walk from the dock to the witness box without inconvenience or
pain. There may be cases where the prisoner exhibits violence which may be more easily
quelled in the dock than in the witness box. But apart from cases of such a nature the right
of the prisoner to give his evidence from the witness box should not be interfered with’.46
While accused persons are competent to testify in their own defence, they are not com-
pellable to do so.47 The Criminal Justice and Public Order Act 1994 makes it clear that the
changes in the law which it introduces48 do not ‘render the accused compellable to give
evidence on his own behalf, and he shall accordingly not be guilty of contempt of court
by reason of a failure to do so’.49 This legislation provides, however, that ‘the court or
jury, in determining whether the accused is guilty of the offence charged, may draw such
inferences as appear proper from the failure of the accused to give evidence or his refusal,
without good cause, to answer any question’.50 An accused will be taken to have refused

40
  See generally C J W Allen, The Law of Evidence in Victorian England (1997) 167–71.
41
  Or simply by being sworn, even if no questions are then put by defence counsel: R v Bingham [1999]
1 WLR 598.
42
  R v Hilton [1972] 1 QB 421. 43
  R v Rudd (1948) 32 Cr App R 138.
44
  R v Paul [1920] 2 KB 183. 45
 S 1(4).
46
  R v Symonds (1924) 18 Cr App R 100, 101. See also R v Farnham JJ, ex p Gibson (1991) 155 JP 792.
47
 S 1(1).
48
  See generally J S W Black, ‘Inferences from Silence: Redressing the Balance? (1)’ (1997) 141 Solicitors’
Journal 741; J D Jackson, ‘Interpreting the Silence Provisions: The Northern Ireland Cases’ [1995] Criminal
Law Review 587; A F Jennings, ‘Resounding Silence’ (1996) 146 New Law Journal 725; A F Jennings,
‘Resounding Silence—2’ (1996) 146 New Law Journal 764; A F Jennings, ‘Resounding Silence—3’ (1996)
146 New Law Journal 821; P Mirfield, ‘Two Side-Effects of Sections 34 to 37 of the Criminal Justice and
Public Order Act 1994’ [1995] Criminal Law Review 612; S Nash, ‘Silence as Evidence: A Commonsense
Development or a Violation of a Basic Right?’ (1997) 21 Criminal Law Journal 145; S Nash, ‘Silence as
Evidence:  Inquisitorial Developments in England and Wales’ [1996] Scots Law Times 69; M Nichols,
‘Liberal Democracy and the Emergence of Law: The Right to Silence’ [1997] UCL Jurisprudence Review 239;
A Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence:  An Unfortunate Approach to S
35(1)(b) of the Criminal Justice and Public Order Act 1994’ [2011] Criminal Law Review 690; R Pattenden,
‘Inferences from Silence’ [1995] Criminal Law Review 602; R Pattenden, ‘Silence:  Lord Taylor’s Legacy’
(1998) 2 International Journal of Evidence and Proof 141; A Samuels, ‘The Right of Silence and Adverse
Inferences’ (1998) 162 Justice of the Peace 201; S Easton, The Case for the Right to Silence (2nd ed 1998) 146–8.
49 S 35(4).
50  S 35(3). By contrast, greater commitment to the right to silence at trial is displayed by the Australian

and Canadian courts: see Weissensteiner v R (1993) 178 CLR 217, RPS v R [2000] HCA 3, and Azzopardi v
R [2001] HCA 25 (Australia); R v Noble (1997) 146 DLR (4th) 385 and R v Prokofiew 2012 SCC 49, [2012] 2
SCR 639 (Canada). See generally G L Davies, ‘Application of Weissensteiner to Direct Evidence’ (2000) 74
Australian Law Journal 371; C Eakin, ‘RPS v R: The Resilience of the Accused’s Right to Silence’ (2000) 22
Sydney Law Review 639; D Hamer, ‘The Privilege of Silence and the Persistent Risk of Self-Incrimination: Part
II’ (2004) 28 Criminal Law Journal 200; P Healy, ‘More Protection for the Silent Accused in Canada: Noble’
(1998) 2 International Journal of Evidence and Proof 247; I Laing, ‘R v Noble: The Supreme Court and the
Permissible Use of Silence’ (1998) 43 McGill Law Journal 637; R Leng, ‘Silence in Court: From Common
Sense to Common Law:  Azzopardi’ (2002) 6 International Journal of Evidence and Proof 62; S Penney,
‘What’s Wrong with Self-Incrimination? The Wayward Path of Self-Incrimination Law in the Post-Charter
360
Witnesses

to answer a question with good cause if ‘(a) he is entitled to refuse to answer the question
by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
(b) the court in the exercise of its general discretion excuses him from answering it’.51
An accused may not be convicted solely on an inference drawn from his or her silence in
court.52
It is impermissible for inferences to be drawn if, in the words of section 35(1)(b), ‘it
appears to the court that the physical or mental condition of the accused makes it unde-
sirable for him to give evidence’. The Court of Appeal has recognized that
the authorities do not support the submission that section 35(1)(b) should be con-
fined to cases where a defendant will suffer an adverse impact on his health or condi-
tion. A rather wider approach . . . is appropriate. There is likely to arise in the future
a variety of circumstances, unrelated to damage to health, in which it would not be
just (and thus it would be undesirable) to permit the possibility of an inference being
drawn. 53
Section 35(1)(b) is, however, of limited utility. First, it would appear that, should the
defence not raise the issue, a court has no obligation to inquire of its own motion whether
section 35(1)(b) may be applicable in the case at hand.54
Secondly, the Court of Appeal held in R v Friend55 that it could not be said that the
judge had ‘applied the wrong test’ in determining the applicability of section 35(1)(b)
‘if only because there is no right test’.56 Friend, a 15-year-old, was charged with murder.
The judge accepted psychological evidence that he had a mental age of around nine
years, and that his comprehension and ability to give an account of himself were lim-
ited. It was concluded, however, that section 35(1)(b) was inapplicable since the accused
was not abnormally suggestible and had provided an apparently coherent account of
events during police interviews. The Court of Appeal upheld this decision, observing
that ‘a physical condition might include a risk of an epileptic attack; a mental condi-
tion, latent schizophrenia where the experience of giving evidence might trigger a florid
state’.57 It will, however, ‘only be in very rare cases that a judge will have to consider
whether it is undesirable for an accused to give evidence on account of his mental con-
dition’, because such an accused is likely to have been found to be unfit to plead in the
first place.58 The Court also failed to be swayed by the argument that, because of the
accused’s mental age, he should have had the same immunity from adverse inference
that the legislation provided at the time for persons under 14. 59 The trial judge’s deci-
sion could not be impugned as it was not unreasonable in the Wednesbury sense; he had

Era—Part III:  Compelled Communications, the Admissibility of Defendants’ Previous Testimony, and
Inferences from Defendants’ Silence’ (2004) 48 Criminal Law Quarterly 474; E Stone, ‘Calling a Spade a
Spade:  The Embarrassing Truth about the Right to Silence’ (1998) 22 Criminal Law Journal 17. Cf G L
Davies, ‘The Prohibition Against Adverse Inferences from Silence: A Rule Without Reason?—Part I’ (2000)
74 Australian Law Journal 26; G L Davies, ‘The Prohibition Against Adverse Inferences from Silence: A Rule
Without Reason?—Part II’ (2000) 74 Australian Law Journal 99. The English position prior to the 1994 Act
is discussed in S Nash, ‘Silence as Evidence: A Commonsense Development or a Violation of a Basic Right?’
(1997) 21 Criminal Law Journal 145.
51 S 35(5). 52 S 38(3).
53  R v Dixon (Jordan) [2013] EWCA Crim 465, [2014] 1 WLR 525 at [52].
54  R v A [1997] Crim LR 883.
55 [1997] 2 All ER 1011. See generally S Sharpe, ‘Vulnerable Defendants and Inferences from

Silence: Part 1’ (1997) 147 New Law Journal 842; S Sharpe, ‘Vulnerable Defendants and Inferences from
Silence: Part 2’ (1997) 147 New Law Journal 897.
56  [1997] 2 All ER 1011, 1020. 57  [1997] 2 All ER 1011, 1020.
58  [1997] 2 All ER 1011, 1018 (italics added). 59  [1997] 2 All ER 1011, 1019.
Compell abilit y 361

acted rationally in taking into account relevant factors and leaving irrelevant ones out
of consideration.60
Finally, a defendant who is arguing the defence of diminished responsibility is not
automatically entitled to the protection of section 35(1)(b).61
Given the manner in which section 35(1)(b) is drafted, it is unsurprising that the
Court of Appeal is prepared to accord considerable leeway to trial judges in determin-
ing the applicability of the provision. Perhaps the solution lies, therefore, in amending
section 35(1)(b) by replacing the subjective test which it provides with a tighter and more
objective test.
The issue of the drawing from silence in court of ‘such inferences as appear proper’
(section 35(3)) was considered by the Court of Appeal in R v Cowan.62 The Court held63
that the use of the phrase ‘such inferences as appear proper’ was clearly ‘intended to leave
a broad discretion to a trial judge to decide in all the circumstances whether any proper
inference is capable of being drawn by the jury. If not he should tell them so; otherwise it
is for the jury to decide whether in fact an inference should properly be drawn.’ But, while
a judge may ‘direct or advise a jury against drawing such inference if the circumstances of
the case justify such a course’, ‘in our view there would need either to be some evidential
basis for doing so or some exceptional factors in the case making that a fair course to take’.
It is clear that a judge should not direct a jury to draw no inferences merely on the basis
that the defendant failed to testify through fear that his previous convictions would be
put to him if he did so.64
The Court provided a brief catalogue of essential elements which should be contained
in a direction to the jury. These are as follows:
• The jury must be directed that the burden of proof remains upon the prosecution
throughout, and on what the required standard is.
• ‘It is necessary for the judge to make clear to the jury that the defendant is entitled to
remain silent. That is his right and his choice. The right of silence remains.’
• Given that an inference from silence cannot on its own prove guilt, the judge is
required to direct the jury that they ‘must be satisfied that the prosecution have
established a case to answer before drawing any inferences from silence’. Rather
confusingly,65 as was seen in Chapter 3, the concept of a ‘case to answer’ (or a ‘prima
facie case’) is one which is also within the province of the judge: if a case to answer
has not been established at the end of the prosecution evidence the judge is required
to stop the case from proceeding. The Court in Cowan considered that to require
the jury to make a second determination of whether there is a case to answer is
not inappropriate since ‘the jury may not believe the witnesses whose evidence the

60  [1997] 2 All ER 1011, 1021. See also R v Tabbakh [2009] EWCA Crim 464, (2009) 173 JP 201 at [10]: ‘In

the present case reading the Judge’s ruling as a whole, it is perfectly clear to us that the Judge ruled that the
risk of selfharm was not such in his judgment [as] to make the giving of evidence undesirable and he went
on to add that it did not become undesirable because any evidence that the defendant might give would be of
insignificant relevance. That approach was, we are satisfied, one which the Judge was quite entitled to take.’
61  R v Barry [2010] EWCA Crim 195, [2010] 2 All ER 1004.
62  [1995] 3 WLR 818. See generally K Browne, ‘An Inference of Guilt?’ (1997) 141 Solicitors’ Journal 202;

R Munday, ‘Cum Tacent Clamant: Drawing Proper Inferences from a Defendant’s Failure to Testify’ [1996]
Cambridge Law Journal 32.
63  [1995] 3 WLR 818, 823–4.
64  [1995] 3 WLR 818, 823. See also R v Taylor [1999] Crim LR 77; R v Becouarn [2005] UKHL 55, [2005]

1 WLR 2589.
65  See, eg, ‘Inferences from a Defendant’s Failure to Testify’ (1997) 161 Justice of the Peace 1131, 1131.
362
Witnesses

judge considered sufficient to raise a prima facie case. It must therefore be made
clear to them that they must find there to be a case to answer on the prosecution evi-
dence before drawing an adverse inference from the defendant’s silence.’ However,
as Pattenden has observed:
The accepted test of a prima facie case is whether there is prosecution evidence,
assumed to be true and uncontradicted, upon which a reasonable jury could con-
vict. What test is the jury to apply? The passage supposes that the jury, unlike the
judge, will consider the credibility of the prosecution witnesses. If so, how does a
finding of a prima facie case differ from a finding of guilt? Is it a case of concentrating
exclusively on the prosecution evidence, other than any inferences arising from the
accused’s in-court silence? Are jurors capable of this?66
• The jury should be directed that ‘if, despite any evidence relied upon to explain his
silence or in the absence of any such evidence, the jury conclude the silence can only
sensibly be attributed to the defendant’s having no answer or none that would stand
up to cross-examination, they may draw an adverse inference’. Notably, the Court was
insistent that any reasons which defence counsel may wish to put forward to the jury
to explain the accused’s silence cannot simply take the form of assertions, but must be
supported by evidence. Such an obligation may be considered to place an unduly oner-
ous (and at times perhaps impossible) task on defence counsel, given the wide array of
reasons which defendants may have for choosing to remain silent in court.
The Court stressed that it would ‘not lightly interfere with a judge’s exercise of discre-
tion to direct or advise the jury as to the drawing of inferences from silence and as to the
nature, extent and degree of such inferences. He is in the best position to have the feel of
the case and so long as he gives the jury adequate directions of law as indicated . . . and
leaves the decision to them, this court will be slow to substitute its view for his.’ The
Court reiterated this point in a subsequent case: ‘we wish to repeat that we do not give
any encouragement to appeals which are based upon the assertion that the Judge ought
to have exercised his discretion differently or ought to have said more or less than he, in
fact, said in the instant case’.67 Such sentiments are not without merit and are in any event
consistent with the trend of treating judges as the repository of large amounts of discre-
tion where issues of evidence and procedure are concerned, with the role of the Court
of Appeal being confined to interfering only where matters have gone obviously wrong.
Notwithstanding this, it is certainly arguable that the Court of Appeal is leaving rather
too much discretion in the hands of judges, and that one can reasonably expect more
detailed guidelines to be provided on the issue of when precisely it would be appropriate
for a jury to be advised against drawing adverse inferences. This would at least constitute
one step towards the better protection of those who with good reason choose to exercise
a right which after all still exists.
The Court of Appeal would appear, however, to take seriously a failure to direct the
jury on one of the essential elements listed in Cowan. The conviction in R v Birchall68 was
quashed on account of the trial judge’s failure to direct the jury that they had to be satis-
fied that the prosecution had established a case to answer before drawing any inference
from the accused’s silence. The fact that there may have been a clear prima facie case was

66 R Pattenden, ‘Silence:  Lord Taylor’s Legacy’ (1998) 2 International Journal of Evidence and

Proof 141, 149.
67  R v Napper (1995) 161 JP 16, 22. See also R v Dixon (Jordan) [2013] EWCA Crim 465, [2014] 1 WLR 525.
68  The Times, 10 Feb 1998. But cf R v Hobson (Andrew) [2013] EWCA Crim 819, [2013] 1 WLR 3733.
Compell abilit y 363

regarded as irrelevant. The Court commented that the drawing of inferences from silence
was a particularly sensitive area, with many respected authorities having expressed
concern that section 35 and analogous provisions might lead to wrongful convictions.
Additionally, it seemed possible that the application of these provisions could lead to
the United Kingdom being found in breach of Articles 6(1) and 6(2) of the European
Convention on Human Rights, unless the provisions were the subject of carefully framed
directions to juries.
Clearly it would be unfair for adverse inferences to be drawn from silence in court if
the accused were not put on notice that it would be permissible for such inferences to be
drawn. Hence the requirement that the court must,
at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceed-
ings on indictment with a jury, in the presence of the jury) that the accused is aware that
the stage has been reached at which evidence can be given for the defence and that he can,
if he wishes, give evidence and that, if he chooses not to give evidence, or having been
sworn, without good cause refuses to answer any question, it will be permissible for the
court or jury to draw such inferences as appear proper from his failure to give evidence or
his refusal, without good cause, to answer any question.69
A Practice Direction spells out in detail the steps the judge should take to discharge this
obligation, both in cases where the accused is legally represented and in cases where the
accused is not legally represented.70 This obligation to put the accused ‘on notice’ may be
viewed as analogous to the obligation to caution suspects that it may be possible to draw
adverse inferences from silence in the police station.71
Another aspect of a trial judge’s duties when summing up in a case where the defendant
had failed to testify was considered by the Court of Appeal in R v Soames-Waring.72 The
Court approved what an earlier Court of Appeal had said in R v Curtin:73
When . . . the defendant was interviewed at length but did not give evidence, the judge,
as in every other case, has to decide how fairly and conveniently he should place the
defence case before the jury. When . . . the interviews were long, their terms had been
rehearsed in evidence, reference to important parts had already no doubt been made
more than once by counsel, and the jury had full transcripts of everything that had
been said, it was not necessarily inappropriate in itself for the judge to deal with the
interviews by specifically inviting the jury’s attention to relevant passages by reference
to page numbers.
The Court of Appeal in Soames-Waring noted that, while the appellant had not given
evidence, the judge had invited the jury to read the whole of the summary of his interview
with the police, and had then referred them to the salient parts in relation to each count.
Thus the judge had done all that he could properly be expected to do in placing before the
jury what was being advanced as giving rise to a defence.
In R v Anwoir the Court of Appeal considered it erroneous for a direction that infer-
ences could be drawn to have been given ‘without the jury having at least heard from
doctors who were of the view that the [relevant] defendant’s mental condition made it
undesirable for him to give evidence. That was a matter which the defendant was entitled

69  Criminal Justice and Public Order Act 1994, s 35(2). In Radford v Kent County Council (1998) 162 JP

697 it was held, however, that, where justices omitted to give a 35(2) warning but then did not draw an infer-
ence, this omission did not render the convictions unsafe.
70  Criminal Practice Directions, [39P]. 71  See Chapter 5.
72  The Times, 20 July 1998; [1999] Crim LR 89. 73  CA, unrep, 24 May 1996.
364
Witnesses

to put before the jury in order for them to make a proper assessment of the extent to
which they should take into account his failure to give evidence.’74

2.1.2  Testifying on behalf of a Co-Accused

It is clear that the same principles apply to testifying on behalf of a co-accused as apply
to testifying on one’s own behalf.75 Thus an accused is competent, but not compellable, to
give evidence on behalf of a co-accused. This can be justified on the basis that one accused
may wish to give evidence against, rather than on behalf of, another. An accused, to be
compellable to testify on behalf of a co-accused, must have ceased to be an accused in the
same trial. He or she may, for example, have pleaded guilty,76 been acquitted as a result of
a direction to acquit by the trial judge,77 or become liable to be tried separately as a result
of the indictment being severed.78

2.2  The Accused’s Spouse or Civil Partner

Specific rules pertaining to the compellability of the spouse or civil partner of an accused
are provided in section 80 of the Police and Criminal Evidence Act 1984.79 These rules
apply only to a current spouse or civil partner; it is expressly provided that ‘a person who
has been but is no longer married to the accused shall be compellable to give evidence as
if that person and the accused had never been married’,80 and that ‘a person who has been
but is no longer the civil partner of the accused shall be compellable to give evidence as
if that person and the accused had never been civil partners’.81 Further, the rules do not
apply to a cohabitee with whom the accused has not formed a marriage or civil partner-
ship. Commenting on section 80 before it was extended to cover civil partnerships (in
addition to marriages), the Court of Appeal remarked that the words of the provision
speak of the ‘wife or husband of a person charged’ being compellable only in certain cir-
cumstances. They do not speak of a person in the position of a wife . . . we do not accept the
proposition . . . that proper respect for family life as envisaged by Article 8 [of the European
Convention on Human Rights] requires that a co-habitee of a defendant, whether or not
married to him, should not be required to give evidence or to answer questions about a
statement which he has already made. This is plainly . . . an area where the interests of the
family must be weighed against those of the community at large, and it is precisely the
sort of area in which the European Court defers to the judgment of States in relation to
their domestic courts. There may be much to be said for the view that with very limited
exceptions all witnesses who are competent should also be compellable, and certainly the
material before us does not enable us to conclude that because a concession has been made
to husbands and wives proper respect for family life requires that a similar concession be
made to those in the position of a husband or a wife. . . . if the concession were to be wid-
ened it is not easy to see where, logically, the widening should end. That objection may not
be insuperable but the possibility of serious limitations being placed upon society’s power
to enforce the criminal law is obvious.82

74  [2008] EWCA Crim 1354, [2009] 1 WLR 980 at [33].

75  S 1 of the Criminal Evidence Act 1898 makes provision as to the competence and compellability of an
accused ‘for the defence at every stage of the proceedings’ (italics added).
76  R v Boal [1965] 1 QB 402. 77  R v Conti (1973) 58 Cr App R 387.
78  R v Richardson (1967) 51 Cr App R 381.
79  See generally P Creighton, ‘Spouse Competence and Compellability’ [1990] Criminal Law Review 34;

S Edwards, ‘Compelling a Reluctant Spouse’ (1989) 139 New Law Journal 691.

80 S 80(5). 81  S 80(5A).
82  R v Pearce [2001] EWCA Crim 2834, [2002] 1 Cr App R 39 at [12].
Compell abilit y 365

Subsequently, however, the Court of Appeal has noted that this decision might have to be
reconsidered in a future case in the light of the requirement of the Human Rights Act 1998
that legislation be read compatibly with the European Convention on Human Rights.83
It would seem that, while ‘there is no requirement to tell a [spouse or civil partner] that
she is not a compellable witness against her [spouse or civil partner] before interviewing her
about a crime of which her [spouse or civil partner] is suspected . . ., it does not follow that
there may not be circumstances in which the police will be well advised to make it plain to
a [spouse or civil partner] that she need not make a statement that implicates her [spouse or
civil partner]’.84
Section 80A makes it clear that the ‘failure of the spouse or civil partner of a person charged
in any proceedings to give evidence in the proceedings shall not be made the subject of any
comment by the prosecution’.85 This prohibition does not extend to the trial judge, who may
make such comment. A trial judge is thus able, by electing simply to make a comment him-
or herself, to ‘cure’ a breach of section 80A by the prosecution. In R v Whitton,86 the accused
was charged with assault occasioning actual bodily harm. At issue was whether she had been
acting in self-defence. In his closing speech prosecution counsel, in clear breach of the fore-
runner to section 80A, commented that the accused’s husband, who had been present at the
scene, had not been called as a witness. In his summing-up, the judge commented twice on
the failure of the husband to testify. The Court of Appeal held that the appeal should be dis-
missed since counsel’s error had been effectively ‘subsumed’ within the judge’s summing-up
and had not therefore undermined in any way the safety of the conviction.

2.2.1  Testifying for the Prosecution

If the accused’s spouse or civil partner (‘S’) happens to be an accused in the same trial,
then obviously87 he or she will not be competent, and therefore will not be compellable,
to testify for the prosecution.88 If S is not an accused in the same trial, then he or she will,
if competent, be compellable to give prosecution evidence in respect only of any specified
offence with which any person is charged.89 An offence is a specified offence if:
(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner
or a person who was at the material time under the age of 16;
(b) it is a sexual offence alleged to have been committed in respect of a person who was
at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling,
procuring or inciting the commission of, an offence falling within paragraph (a) or
(b) above.90

83  R v A (B) [2012] EWCA Crim 1529, [2012] 1 WLR 3378 at [21].
84  R v L [2008] EWCA Crim 973, [2009] 1 WLR 626 at [33]. 85  See formerly s 80(8).
86  [1998] Crim LR 492.
87  As seen in Section 1.1, an accused person is never competent to give prosecution evidence in the

same trial.
88  See also s 80(4).
89  S 80(2A)(b). For an account of an unsuccessful attempt to prevent a marriage from taking place in

order to maintain the compellability of a spouse to give prosecution evidence, see R (CPS) v Registrar
General of Births, Deaths and Marriages [2002] EWCA Civ 1661, [2003] QB 1222. See generally D Dwyer,
‘Can a Marriage Be Delayed in the Public Interest so as to Maintain the Compellability of a Prosecution
Witness?: R (on the application of the Crown Prosecution Service) v Registrar General of Births, Deaths and
Marriages’ (2003) 7 International Journal of Evidence and Proof 191; J R Spencer, ‘Spouses as Witnesses: Back
to Brighton Rock?’ [2003] Cambridge Law Journal 250.
90 S 80(3).
366
Witnesses

To qualify as an offence that involves an assault, injury, or threat of injury, ‘the offence
itself does not have to have as one of its ingredients’ an assault, injury, or threat of injury.
‘It is sufficient if the offence encompasses the real possibility of an assault or injury or
threat of injury.’91 A  ‘sexual offence’ is defined as ‘an offence under the Protection of
Children Act 1978 or Part 1 of the Sexual Offences Act 2003’.92

2.2.2  Testifying for the Accused

If the accused’s spouse or civil partner (‘S’) happens to be an accused in the same trial as
the accused (‘A’), then—consistently with the principle that one accused should not be
compellable to give evidence on behalf of another—S will not be compellable to testify on
behalf of A.93 If S is not an accused in the same trial, then he or she will be compellable to
give evidence on behalf of A by virtue of section 80(2).

2.2.3  Testifying for a Co-Accused

If the accused’s spouse or civil partner (‘S’) happens to be an accused in the same trial
as a co-accused (‘C’) of the accused, then—consistently with the principle that one
accused should not be compellable to give evidence on behalf of another—S will not
be compellable to testify on behalf of C.94 If S is not an accused in the same trial, then
he or she will be compellable to give evidence on behalf of C in respect of any specified
offence with which C is charged.95 The definition of a specified offence has been pro-
vided in Section 2.2.1.

2.2.4  An Evaluation
It would appear that considerations pertaining to the notions of the sanctity of marriage
and the preservation of matrimonial harmony underlay the strategy—now extended to
civil partners—of making an accused’s spouse a non-compellable witness for the pros-
ecution and a co-accused, except in the case of specific offences of violence or sexual
offences.96 It is doubtful, however, whether such notions hold as much sway today as
they may once have done, and in particular whether they have sufficient force to out-
weigh the public interest in the conviction of the guilty. In any event, it is the principle of
non-compellability itself which may well undermine marital harmony, or the harmony of
a civil partnership, given that it
may tempt an accused to exert pressure on his or her spouse [or civil partner] to refrain
from testifying, to say nothing of the threat of reprisals. . . . Now, if a wife or husband [or
civil partner] succumbs to pressure from their accused partner, they are in effect made an
unwilling accomplice to the offence in assisting their spouse [or civil partner] to escape
punishment (assuming, of course, that he is guilty). A spouse [or civil partner] who thus
becomes an instrument of their partner’s wrongdoing suffers moral degradation, which
itself could undermine the couple’s relationship, as well as being detrimental to the inno-
cent spouse [or civil partner].97

91  R v A (B) [2012] EWCA Crim 1529, [2012] 1 WLR 3378 at [18]. 92 S 80(7).
93  See also s 80(4). 94  See also s 80(4). 95  S 80(2A)(a).
96  Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmnd 4991, 1972) [147], [155].
97  P Roberts and A Zuckerman, Criminal Evidence (2nd ed 2010) 313. For an alternative perspective,

see J Brabyn, ‘A Criminal Defendant’s Spouse as a Prosecution Witness’ [2011] Criminal Law Review
613; R O Lempert, ‘A Right to Every Woman’s Evidence’ (1981) 66 Iowa Law Review 725. The importance
of providing adequate support to a testifying spouse or civil partner is discussed in S K Ragavan, ‘The
Compellability Rule in England and Wales: Support for the Spouse of the Defendant’ (2013) 77 Journal of
Criminal Law 310.
Compell abilit y 367

In this respect, an approach like that taken in the Uniform Evidence Acts in Australia
may be preferable. There is a presumption of compellability which is capable of being
rebutted. A person who is the spouse, de facto partner, parent, or child of the defendant
is entitled to object to being required to testify for the prosecution. This objection will
succeed if
(a) there is a likelihood that harm would or might be caused (whether directly or indi-
rectly) to the person, or to the relationship between the person and the defendant, if
the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of having the evidence
given.98
In determining the issue all relevant factors may be considered, and the following must
be considered:
(a) the nature and gravity of the offence for which the defendant is being prosecuted;
(b) the substance and importance of any evidence that the person might give and the
weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the
person would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the defendant and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was
received by the person in confidence from the defendant.99

2.3  Bankers
Section 6 of the Bankers’ Books Evidence Act 1879 provides:
A banker or officer of a bank shall not, in any legal proceeding to which the bank
is not a party, be compellable to produce any banker’s book the contents of which
can be proved under this Act, or to appear as a witness to prove the matters, trans-
actions, and accounts therein recorded, unless by order of a judge made for special
cause.

2.4  Judges
A judge is not compellable ‘to give evidence of those matters of which he became aware
relating to and as a result of his performance of his judicial functions’. This rule does
not, therefore, apply to ‘collateral incidents’ such as a murder witnessed by the judge
in the courtroom. But, since the judge remains competent to testify even as to matters
which relate to and of which he became aware as a result of his performance of judicial
functions, ‘if a situation arises where his evidence is vital, the judge should be able to be
relied on not to allow the fact that he cannot be compelled to give evidence to stand in
the way of his doing so’.100

98 S 18(6).
99 S 18(7). This is the wording of the Commonwealth legislation. For Canadian discussion see C

Sewrattan, ‘The Spousal Incompetence Rule and Marital Privilege: When an Anachronism Meets Reality’
(2012) 59 Criminal Law Quarterly 109.
100  Warren v Warren [1996] 4 All ER 664, 671.
368
Witnesses

2.5  The Sovereign

Not uncontroversially, the sovereign is not compellable to testify.101

3  Corroboration, Witness Unreliability, and Judicial Warnings

An indicator of the reliability of an item of prosecution evidence may be provided by
the fact that it is supported by other evidence in the case. As discussed in Chapter 6,
the concept of supporting evidence plays an important role in the law relating to iden-
tification evidence. Traditionally, English law placed considerable emphasis on a par-
ticular type of support known as ‘corroboration’.102 Corroborative evidence ‘must be
independent testimony which affects the accused by connecting or tending to connect
him with the crime. In other words, it must be evidence which implicates him, that is,
which confirms in some material particular not only the evidence that the crime has
been committed, but also that the prisoner committed it.’103
There now remain only a few situations in which corroboration of evidence is a pre-
requisite to conviction.104 Whether evidence is corroborated is ultimately a question
for the trier of fact.

3.1  Speeding
A person may not be convicted of an offence of speeding under section 89(1) of the
Road Traffic Regulation Act 1984 on the uncorroborated evidence of a witness ‘to
the effect that, in the opinion of the witness, the person prosecuted was driving the
vehicle at a speed exceeding a specified limit’.105 This has been interpreted as mean-
ing that a defendant cannot be convicted on uncorroborated evidence given by a

101
  See generally D Pannick, ‘The Queen Should not Always Be Treated Like Royalty’, The Times, 26 Nov
2002, Law, 4; D Pannick, ‘Turning Queen’s Evidence’ [2003] Public Law 201.
102
  For a historical perspective see J H Langbein, The Origins of Adversary Criminal Trial (2003) Ch 4. See
also S Leahy, ‘The Corroboration Warning in Sexual Offence Trials: Final Vestige of the Historic Suspicion
of Sexual Offence Complainants or a Necessary Protection for Defendants?’ (2014) 18 International Journal
of Evidence and Proof 41.
103  R v Baskerville [1916] 2 KB 658, 667.
104  This is in contrast to the position in Scotland, where evidence of all the essential ingredients of an

offence must be corroborated: see generally A Brown, ‘Two Cases on Corroboration’ [1998] Scots Law Times
71; F Crowe, ‘A Case for the Abolition of Corroboration in Criminal Cases?’ [2011] Scots Law Times 179; M
Redmayne, ‘Corroboration and Sexual Offences’ [2006] Juridical Review 309; D Sheldon, ‘Corroboration
and Relevance: Some Further Thoughts on Fox v HM Advocate and Smith v Lees’ [1998] Scots Law Times
115. For details of a recent debate see I C M Cairns, ‘Does the Abolition of Corroboration in Scotland
Hold Promise for Victims of Gender-Based Crimes? Some Feminist Insights’ [2013] Criminal Law Review
640; D J Cusine, ‘To Corroborate or Not to Corroborate’ [2013] Scots Law Times 79; F P Davidson and
P R Ferguson, ‘The Corroboration Requirement in Scottish Criminal Trials: Should It Be Retained for Some
Forms of Problematic Evidence?’ (2014) 18 International Journal of Evidence and Proof 1; P R Ferguson and
F E Raitt, ‘A Clear and Coherent Package of Reforms? The Scottish Government Consultation Paper on the
Carloway Report’ [2012] Criminal Law Review 909; G Lindhorst and S Merk, ‘Corroboration Revisited’
[2013] Scots Law Times 147; L McIntosh, ‘MacAskill’s Rethink on Corroboration Fails to Impress Senior
Legal Minds’, The Times, 5 Feb 2014 (online); D J C Thomson, ‘A Defence of Corroboration in Criminal
Law’ [2012] Scots Law Times 7.
105  Road Traffic Regulation Act 1984, s 89(2).
Corrobor ation, Witness Unreliabilit y, and Judicial Warnings 369

witness of his or her ‘visual impression of a defendant’s speed. That is so whether

the witness is an untutored bystander or a police officer who may have considera-
ble expertise in visually assessing the speed of moving vehicles.’106 A defendant can,
however, be convicted on the uncorroborated evidence of an expert in post-accident
reconstruction
to the effect that, having inspected damage to the vehicle driven by the person pros-
ecuted following a collision and having inspected and measured marks on the road
at the place of collision and inspected marks on such vehicle, and having carried out
certain tests, and having made calculations based on the physical signs observed and
the tests carried out (such damage, marks, tests and calculations being described in
evidence), he was of opinion that the person prosecuted was driving the vehicle at a
speed exceeding a specified limit before the collision.107

3.2  Perjury
A person charged
• with any offence against the Perjury Act 1911, or ‘any offence declared by any other
Act to be perjury or subornation of perjury, or to be punishable as perjury or subor-
nation of perjury’,
• may not be convicted on the uncorroborated evidence of a witness ‘as to the falsity
of any statement alleged to be false’.108
The actual falsity of the statement is not a prerequisite to a conviction for perjury; the
offence can be committed so long as the defendant does not believe it to be true. Thus,
because what is required is corroboration of evidence of falsity, there may well be perjury
prosecutions in which the corroboration requirement will not apply. In practice, however,
these are likely to be very rare, since the vast majority of perjury prosecutions do involve
an allegation that the statement in question is false.109

3.3  Attempts to Commit Speeding or Perjury Offences

By virtue of section 2(2)(g) of the Criminal Attempts Act 1981, any statutory provision
having the effect of requiring evidence to be corroborated as a prerequisite to conviction
applies also to an attempt to commit the offence in question.

3.4  Criminal Justice and Public Order Act 1994, Section 32(1)

Immediately prior to the Criminal Justice and Public Order Act 1994, trial judges were
obliged to issue a warning to the jury about convicting the accused on the uncorrobo-
rated evidence of (1) an alleged accomplice of the accused testifying for the prosecu-
tion; or (2) a complainant in a sexual case; or (3) a prosecution witness who was not in
one of these two categories but fulfilled ‘analogous criteria’;110 for example, a witness
whose evidence may have been tainted by an improper motive111 or who was ‘suspect’

106  Crossland v DPP [1988] 3 All ER 712, 714. 107  Crossland v DPP [1988] 3 All ER 712, 713.
108  Perjury Act 1911, s 13. See R v Hamid (1979) 69 Cr App R 324; R v Carroll (1993) 99 Cr App R 381; R v
Cooper [2010] EWCA Crim 979, [2010] 1 WLR 2390.
109  R v Rider (1986) 83 Cr App R 207. 110  R v Spencer [1987] AC 128.
111  R v Beck [1982] 1 WLR 461.
370
Witnesses

by reason of mental condition or criminal connection.112 Section 32(1) abolishes the

warning requirement in relation to alleged accomplices and complainants in sexual
cases:113
Any requirement whereby at a trial on indictment it is obligatory for the court to give the
jury a warning about convicting the accused on the uncorroborated evidence of a person
merely because that person is—
(a) an alleged accomplice of the accused, or
(b) where the offence charged is a sexual offence, the person in respect of whom it is
alleged to have been committed,
is hereby abrogated.
Analogous provision is made for summary trials in section 32(3).
Section 32(1) was the subject of detailed consideration by the Court of Appeal in R v
Makanjuola.114 The following key points emerge from this decision:115
• It would be inappropriate for judges to continue effectively to apply the old com-
mon law by giving, in the exercise of their ‘discretion’, precisely those warnings
which were required at common law in relation to accomplices and complainants in
sexual cases.
• Rather, the discretion about whether a warning in relation to any witness should be
given, and if so in what terms, should be exercised by taking into account the fol-
lowing factors: the circumstances of the case, the issues raised, and the content and
quality of the witness’s evidence.
• It will often be considered that no special warning is required at all. But in some
cases it may be appropriate to warn the jury to exercise caution before acting upon
the evidence of a particular witness. There will need to be an evidential basis for
suggesting that the evidence of the witness may be unreliable. An evidential basis
cannot be provided by mere suggestion by cross-examining counsel. In a more
extreme case—for example, if the witness is shown to have lied, to have made previ-
ous false complaints, or to bear the defendant some grudge—a stronger warning
may be thought appropriate and the judge may suggest that it would be wise to look
for some supporting material before acting on the evidence.
• If a question arises about whether a special warning should be given in respect of a
witness, it is desirable that the question be resolved by discussion with counsel in the
absence of the jury before final speeches. The Court emphasized the desirability of
this again in R v Walker.116
• Where a warning is given in the exercise of discretion, it will be appropriate to do
so as part of the judge’s review of the evidence and comments on how the evidence

112  R v Spencer [1987] AC 128.

113  See generally D J Birch, ‘Corroboration: Goodbye to All That?’ [1995] Criminal Law Review 524; I
Dennis, ‘The Criminal Justice and Public Order Act 1994: The Evidence Provisions’ [1995] Criminal Law
Review 4; J Hartshorne, ‘Corroboration and Care Warnings after Makanjuola’ (1998) 2 International
Journal of Evidence and Proof 1; P Lewis, ‘Corroboration Reborn’ (1996–7) 7 King’s College Law Journal
140; P Mirfield, ‘“Corroboration” after the 1994 Act’ [1995] Criminal Law Review 448. For a compara-
tive perspective see P Lewis, ‘A Comparative Examination of Corroboration and Caution Warnings in
Prosecutions of Sexual Offences’ [2006] Criminal Law Review 889. See also Laing v R [2013] UKPC 14,
[2013] 1 WLR 2670.
114  [1995] 1 WLR 1348. 115  [1995] 1 WLR 1348, 1351–2. 116  [1996] Crim LR 742.
Corrobor ation, Witness Unreliabilit y, and Judicial Warnings 371

should be evaluated. The strength and terms of the warning are matters for the judge
to decide.
• The Court of Appeal would be reluctant to interfere with the exercise of discretion
by the trial judge (who, after all, has had the advantage of assessing the manner
and content of the witness’s evidence), except in a case where that exercise is unrea-
sonable in the Wednesbury sense. The Court emphasized this point again in R v
R,117 where the burden on an appellant of showing Wednesbury unreasonableness in
this context was described as a heavy one. Thus in R the Court refused to interfere
with the trial judge’s exercise of discretion in relation to the strength of the warning
given. One case in which the Court has been prepared to allow an appeal on the basis
of failure to consider giving a warning is that of R v Walker.118 The complainant had
made a complaint of rape, later retracted the complaint, and later still withdrawn the
retraction. The complainant’s evidence was unsupported. It was held that the retrac-
tion of the complaint and the withdrawal of the retraction were important and rele­
vant to the complainant’s credibility. Thus it was not sufficient that the matter had
been widely canvassed in counsel’s speeches; a special warning of the type referred
to in Makanjuola should also have been considered.
It is to be noted that section 32(1) abolishes the warning requirement in relation to just
two of the three categories of witnesses attracting mandatory corroboration warnings
immediately prior to the Criminal Justice and Public Order Act 1994. The third category,
of which no mention was made in Makanjuola, would seem to remain unaffected. Given
that this third category is merely a product of ‘the overriding rule . . . that [the judge] must
put the defence fairly and adequately’119 to the jury, its survival is in no way inconsistent
with Makanjuola. The discretionary warnings, tailored to the circumstances of the par-
ticular case, which Makanjuola advocates are clearly themselves a product of the same
overriding rule.
The exhortation in Makanjuola that it is inappropriate for trial judges to continue to
apply the old law in the exercise of their ‘discretion’ is very much to be welcomed. Despite
this, there is a danger that trial judges may in fact be continuing to give strong warn-
ings in relation to alleged accomplices testifying for the prosecution and complainants
in sexual cases, even if a warning is not warranted in the circumstances of the particu-
lar case. Temkin noted in 2002: ‘Although the Court of Appeal has dealt with the issue
in a perfectly satisfactory way, research is required into whether its pronouncements
are being followed by trial judges.’120 Subsequent research findings reveal that, in rape
cases, ‘some judges were continuing to tell juries to look for “independent support” of
the complainant’s claim which is not generally asked for in other criminal cases’.121 As
the prosecution cannot appeal against an acquittal, it would effectively be unable to bring
inappropriate judicial practices to the attention of the Court of Appeal except by means
of an Attorney-General’s reference. It is strongly arguable, therefore, that section 32(1)
should have been couched in stronger terms, actively prohibiting warnings in relation
to these two categories of witnesses except in exceptional circumstances.122 The further

117  [1996] Crim LR 815. 118  [1996] Crim LR 742. 119  R v Spencer [1987] AC 128, 142.
120  J Temkin, Rape and the Legal Process (2nd ed 2002) 263.
121  J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008) 158. See

also P Lewis, Delayed Prosecution for Childhood Sexual Abuse (2006): ‘Following the legislative reforms [in
England and Wales and other jurisdictions], there was scepticism that entrenched judicial attitudes would
result in warnings being given in all sexual cases which does not appear to have occurred’ (at 133), ‘although
there is evidence that some judges continue to give the old-style warnings’ (at 128).
122  J Temkin, Rape and the Legal Process (2nd ed 2002) 263–7.
372
Witnesses

development of education programmes which seek to dispel the myth that women are
prone to making false accusations of rape123 should also be encouraged. Further, as Mack
suggests, consideration could be given to the possibility of providing juries with informa-
tion about the reality of rape and the effects of rape on victims, so that women’s testimony
can be placed in the appropriate context; to the possibility of calling expert witnesses
to dispel misconceptions which the jury may hold and which may prevent them from
evaluating the complainant’s testimony properly; and even to the possibility of admitting
statistical or expert evidence demonstrating the falsity of rape myths which were once
actively endorsed by the law and may still be accepted by many jurors.124
A situation where an appellate court may consider it appropriate for the discretion to
give a care warning to have been exercised is in relation to ‘cell confessions’. ‘It takes little
imagination to appreciate that evidence purporting to attest to such confessions is inher-
ently suspect.’125 The Privy Council has explained that it is
not possible to lay down any fixed rules about the directions which the judge should give
to a jury about the evidence which one prisoner gives against another prisoner about
things done or said while they are both together in custody. But . . . a judge must always be
alert to the possibility that the evidence by one prisoner against another is tainted by an
improper motive, and the possibility that this may be so has to be regarded with particular
care where a prisoner who has yet to face trial gives evidence that the other prisoner has
confessed to the very crime for which he is being held in custody. . . .
. . . there are two steps which the judge must follow . . ., and . . . they are both equally
important. The first is to draw the jury’s attention to the indications that may justify the
inference that the prisoner’s evidence is tainted. The second is to advise the jury to be
cautious before accepting his evidence. Some of the indications that the evidence may be
tainted may have been referred to by counsel, but it is the responsibility of the judge to
examine the evidence for himself so that he can instruct the jury fully as to where these
indications are to be found and as to their significance. Counsel may well have suggested
to the jury that the evidence is unreliable, but it is the responsibility of the judge to add his
own authority to these submissions by explaining to the jury that they must be cautious
before accepting and acting upon that evidence.126

123
  See generally P N S Rumney, ‘False Allegations of Rape’ [2006] Cambridge Law Journal 128.
124
  K Mack, ‘Continuing Barriers to Women’s Credibility: A Feminist Perspective on the Proof Process’
(1993) 4 Criminal Law Forum 327, 350–1. Empirical evidence has demonstrated ‘the falsity of any suggestion
that jurors in rape cases can be entrusted to leave their personal prejudices and stereotypical preconcep-
tions behind them when they enter the courtroom’: L Ellison and V E Munro, ‘Reacting to Rape: Exploring
Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49 British Journal of Criminology 202, 214.
See also A Cossins, ‘Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform
in Australia and England’ (2013) 17 International Journal of Evidence and Proof 74; L Ellison, ‘Closing the
Credibility Gap:  The Prosecutorial Use of Expert Witness Testimony in Sexual Assault Cases’ (2005) 9
International Journal of Evidence and Proof 239; L Ellison, ‘The Use and Abuse of Psychiatric Evidence in
Rape Trials’ (2009) 13 International Journal of Evidence and Proof 28; L Ellison and V E Munro, ‘Turning
Mirrors in Windows? Assessing the Impact of (Mock) Juror Education in Rape Trials’ (2009) 49 British
Journal of Criminology 363. In 2007, the Government undertook to ‘continue to look for ways in which gen-
eral expert material could be presented in a controlled and consistent way with a view to dispelling myths
as to how victims behave after incidents of rape’: Office for Criminal Justice Reform, Convicting Rapists and
Protecting Victims—Justice for Victims of Rape: Response to Consultation (2007) 21.
125  D Wolchover and A Heaton-Armstrong, ‘Oral Confessions to Non-Investigator Witnesses’, 197, in A

Heaton-Armstrong, E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness Testimony: Psychological,

Investigative and Evidential Perspectives (2006).
126  Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545 at [34]–[35]. See generally P Tain, ‘Confessions

of a Cellmate’ (2003) 147 Solicitors’ Journal 566. See also R v Causley [1999] Crim LR 572; R v Price [2004]
EWCA Crim 1359.
Corrobor ation, Witness Unreliabilit y, and Judicial Warnings 373

Taking into account previous authorities on the issue, the Court of Appeal in R v Stone127
provided a summary of what it regarded as the applicable principles:
Any case involving a cell confession will prompt the most careful consideration by the
judge. . . .
But the judge’s consideration is not trammelled by fixed rules . . . there will generally be
a need for the judge to point out to the jury that such confessions are often easy to con-
coct and difficult to prove and that experience has shown that prisoners may have many
motives to lie. If the prison informant has a significant criminal record or a history of
lying then usually the judge should point this out to the jury and explain that it gives rise
to a need for great care and why. The trial judge will be best placed to decide the strength
of such warnings and the necessary extent of the accompanying analysis.
But not every case requires such a warning. This Court has said repeatedly that a
summing-up should be tailored by the judge to the circumstances of the particular case.
That principle bears repetition. If an alleged confession, for whatever reason, would not
have been easy to invent, it would be absurd to require the judge to tell the jury that con-
fessions are often easy to concoct. Similarly, . . . in a case where the defence has deliberately
not cross-examined the informant as to motive of hope of advantage, the law does not
require the judge to tell the jury that, merely because the informant was a prisoner, there
may have been such a motive.128
The Court of Appeal has acknowledged that ‘a judge, in exercising his discretion as to
what to say to the jury should at least warn them, where one defendant has given evidence
adverse to another, to examine the evidence of each with care because each has or may
have an interest of his own to serve’.129
The unpredictability generated by the discretionary nature of care warnings and their
effect is well illustrated by the decision of the Supreme Court of Canada in R v Brooks.130
Of the seven judges who sat on the Supreme Court in this case, three131 held that on
the facts of the case a care warning about the evidence of two ‘jailhouse informants’
should have been given in the exercise of discretion. Three judges132 thought that the
trial judge had not erred in failing to give a care warning. The seventh judge133 thought
that a care warning should have been given, but held that the prosecution’s appeal should
be allowed because there was no reasonable possibility that the verdict would have been
different if the warning had been given. Thus the result was that the prosecution’s appeal
was allowed and the conviction restored, even though four of the seven judges thought
that a care warning should have been given in the exercise of discretion on the facts of
the case.134

127  [2005] EWCA Crim 105. See generally C Wells and M Stevenson, ‘Cell Confessions—No Stone Left

Unturned’ (2005) 155 New Law Journal 550; D Wolchover and A Heaton-Armstrong, ‘Confessors of the
(Prison) Cloth’ [2005] 5 Archbold News 8.
128  [2005] EWCA Crim 105 at [82]–[84]. Wolchover and Heaton-Armstrong argue that what is required is a

rule ‘prohibiting convictions based on uncorroborated and unauthenticated oral confessions’: D Wolchover
and A Heaton-Armstrong, ‘Oral Confessions to Non-Investigator Witnesses’, 209, in A Heaton-Armstrong,
E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness Testimony:  Psychological, Investigative and
Evidential Perspectives (2006). See further the discussion of the corroboration of confessions in Chapter 4.
129  R v Jones [2003] EWCA Crim 1966, [2004] 1 Cr App R 5 at [41].
130  [2000] 1 SCR 237. See generally G T G Seniuk, ‘Liars, Scoundrels and the Search for Truth’ (2000) 30

Criminal Reports (5th) 244.

131  Iacobucci, Major, and Arbour JJ. 132  Gonthier, McLachlin, and Bastarache JJ.
133 Binnie J.
134  See also R v Rojas 2008 SCC 56, [2008] 3 SCR 111; R v Khela 2009 SCC 4, [2009] 1 SCR 104; R v Smith

2009 SCC 5, [2009] 1 SCR 146; R v Hurley 2010 SCC 18, [2010] 1 SCR 637; R v Mack 2014 SCC 58.
374
Witnesses

Rather than rely on a care warning it may be appropriate in some cases for section 78 of
the Police and Criminal Evidence Act 1984 to be utilized to exclude totally from the jury’s
consideration the evidence of the impugned witness.135 The courts are cautious about
such a strategy, with the Court of Appeal remarking that the possibility of using section
78 in this way ‘could only even arguably arise if it was thought, first, that no reasonable
jury could accept the witness’s evidence; but second, for some reason the grounds for
demonstrating that that was so could not be put before the jury’.136

3.5  Evidence of Accused’s Lies

Before leaving the subject of warnings, it would seem appropriate to address briefly the
issue of evidence of lies told by an accused, either in or out of court. The prosecution may
wish to adduce this evidence since, in the words of the Court of Appeal in R v Lucas, ‘it
accords with good sense that a lie told by a defendant about a material issue may show that
the liar knew if he told the truth he would be sealing his fate’.137 The telling of lies need not
necessarily, however, indicate a consciousness of guilt:
People do not always tell the truth. Laudable as it may be to do so, whatever the circum-
stances, they do not, or cannot, always bring themselves to face up to reality. Innocent
people sometimes tell lies even when by doing so they create or reinforce the suspicion of
guilt. In short, therefore, while lying is often resorted to by the guilty to hide and conceal
the truth, the innocent can sometimes misguidedly react to a problem, or postpone facing
up to it or attempt to deflect ill-founded suspicion, or fortify their defence by telling lies.
For example, a married man who has had consensual sexual intercourse with a woman
and is then faced with an allegation of raping her will sometimes untruthfully deny the
act of sexual intercourse at all, in order selfishly to avoid embarrassment to him of his
wife’s discovery of his infidelity or, less selfishly perhaps, the consequent anguish that the
knowledge may cause to her and to their children.138
Thus evidence of lies must be treated with caution, and there are therefore circumstances
in which a judicial direction concerning a defendant’s lies (or a Lucas direction, as it is
known) may be required.139 The purpose of the direction is to avoid the risk that the jury
may adopt the reasoning ‘that lying demonstrates, and is consistent only with, a desire to
conceal guilt, or, putting it another way, . . . jump from the conclusion that the defendant
has lied to the further conclusion that he must therefore be guilty’.140 In R v Burge and Pegg,
the Court of Appeal undertook the task of
summarising the circumstances in which, in our judgment, a Lucas direction is usually
required. There are four such circumstances but they may overlap:
1. Where the defence relies on an alibi.

135  For a similar argument in Canada, see K Roach, ‘Unreliable Evidence and Wrongful Convictions: The

Case for Excluding Tainted Identification Evidence and Jailhouse and Coerced Confessions’ (2007) 52
Criminal Law Quarterly 210. See also B MacFarlane, ‘Convicting the Innocent:  A  Triple Failure of the
Justice System’ (2006) 31 Manitoba Law Journal 403, 469–70.
136  R v Smith [2003] EWCA Crim 3847 at [46]. Reversed by the House of Lords on other grounds: R v

Smith [2005] UKHL 12, [2005] 1 WLR 704.

137  [1981] QB 720, 724. 138  R v Middleton, The Times, 12 Apr 2000; transcript at [18].
139  See generally ‘Conduct or Behaviour after the Offence (Alleged):  The Lucas Direction’ (2000) 164

Justice of the Peace 760; L Connor, ‘Lies, Lying, and Lucas’ (2004) 168 Justice of the Peace 168; K Grevling,
‘Silence, Lies and Vicious Circularity’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (2003).
140  R v Middleton, The Times, 12 Apr 2000; transcript at [20].
Corrobor ation, Witness Unreliabilit y, and Judicial Warnings 375

2. Where the judge considers it desirable or necessary to suggest that the jury should
look for support or corroboration of one piece of evidence from other evidence in the
case, and amongst that other evidence draws attention to lies told, or allegedly told, by
the defendant.
3. Where the prosecution seek to show that something said, either in or out of the court,
in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence
of guilt in relation to the charge which is sought to be proved.
4. Where although the prosecution have not adopted the approach to which we have
just referred, the judge reasonably envisages that there is a real danger that the jury
may do so.
. . . a judge would be wise always, before speeches and summing-up in circum-
stance number four, and perhaps also in other circumstances, to consider with coun-
sel whether, in the instant case, such a direction is in fact required, and, if so, how
it should be formulated. If the matter is dealt with in that way, this court will be
very slow to interfere with the exercise of the judge’s discretion. Further, the judge
should, of course, be assisted by counsel in identifying cases where a direction is
called for.141
On the content of a Lucas direction, the Court said:
The direction should, if given, so far as possible, be tailored to the circumstances of the
case, but it will normally be sufficient if it makes the two basic points:
1. that the lie must be admitted or proved beyond reasonable doubt, and;
2. that the mere fact that the defendant lied is not in itself evidence of guilt since
defendants may lie for innocent reasons, so only if the jury is sure that the defend-
ant did not lie for an innocent reason can a lie support the prosecution case.142
The Court emphasized subsequently that
the four situations outlined in Burge . . . were an attempt by the Court to identify common
instances where a Lucas direction is required, but without seeking to reduce the force of
the general principle that such a direction is required if there is a danger that the jury
may regard the fact, if it be a fact, that a defendant has told lies as probative of his guilt
on the charge. . . . the purpose of a Lucas direction is to guard against the forbidden line of
reasoning that the telling of lies equals guilt. That may be true whether the lie is told in or
out of court.143
R v Nash is a case in which it was held that a Lucas direction ought to have been given. The
defendant was convicted of criminal damage with an air rifle. He had initially lied to the
police when he denied owning an air weapon. The Court of Appeal considered that ‘the
absence of the conventional Lucas direction in the present case amounted to a misdirec-
tion rendering the verdict of the jury unsafe’:144
a Lucas direction is necessary where a lie is relied upon by the prosecution or might
be used by the jury to support evidence of guilt as opposed to merely reflecting on the
defendant’s credibility. . . . whether or not counsel specifically relied upon that lie (the

141  [1996] 1 Cr App R 163, 173–4.

142  [1996] 1 Cr App R 163, 174. See also R v Hill [1996] Crim LR 419; R v Robinson [1996] Crim LR
417; R v Genus [1996] Crim LR 502; R v Harron [1996] 2 Cr App R 457; R v Jefford [2003] EWCA Crim
1987 at [23].
143  R v Jefford [2003] EWCA Crim 1987 at [19]. 144  [2004] EWCA Crim 164 at [17].
376
Witnesses

denial of owning an air rifle) in support of guilt, it was a matter which the jury may well
have taken into account in support of guilt and may perhaps have regarded . . . as estab-
lishing guilt. In the absence of direct evidence implicating the appellant, it is likely to
have featured strongly in their thinking.145
In Chapter 5 we considered the directions to the jury that are required in relation to pros-
ecution evidence that the defendant failed to mention during police questioning a fact
later relied on in court. The Court of Appeal has clarified that ‘where the same response
is relied upon both as a lie and a failure to mention a fact relied upon by the defence then
both directions should be given’.146

4  Measures Designed to Ease the Burden on Witnesses

Better treatment of witnesses in general and of vulnerable witnesses in particular is a
prominent theme in the contemporary law of evidence. Child witnesses, for example,
were traditionally regarded with great suspicion. However, it may be demonstrated by ref-
erence to psychological and other evidence that this suspicion is largely unwarranted.147
First, the notion that children’s memories are unreliable is a misleading generalization.
The significant point, rather, is that the reliability of a child’s memory is dependent
to a great extent upon the manner in which he or she is questioned. Secondly, it has
traditionally been suggested that children are egocentric in the sense that they have
no concern about the impact of their actions (for example, lying) on others, and in
the sense that they cannot remember details which do not interest them directly. Now
while there is evidence that very young children may be egocentric in the first sense, it
is unclear whether this kind of egocentrism actually has any effect on a child’s veracity.
Furthermore, there is no evidence that egocentrism in the second sense is more pecu-
liar to children than to adults. Thirdly, children have traditionally been regarded as
particularly suggestible, but Spencer and Flin point out that ‘the psychological research
shows that children, like adults, can be suggestible but that this risk can be minimised
by the use of sensitive questioning techniques in the hands of a skilled interviewer’.148
Fourthly, it is often thought that children cannot distinguish fact from fantasy, but the
reality is that there is no evidence suggesting that children routinely fantasize about
the sort of incidents which might result in court proceedings. Children’s fantasies
are characterized instead by their daily experience and personal knowledge. Finally,
there is the notion that children are prone to making false allegations. In fact, however,
there is no evidence to support the assumption that children are more inclined to lie
than adults.
Some relatively simple and straightforward steps can obviously be taken to ease
the ordeal endured by child witnesses, such as ‘reducing the chances of distressing

145  [2004] EWCA Crim 164 at [15]. For recent discussion see R v Press [2013] EWCA Crim 1849.
146  R v O (A) [2000] Crim LR 617; transcript at [11].
147  See J R Spencer and R H Flin, The Evidence of Children:  The Law and the Psychology (2nd ed

1993) Ch 11, on which I  have relied in this paragraph. See also Lord Judge, ‘The Evidence of Child
Victims: The Next Stage’, Bar Council Annual Law Reform Lecture, 21 Nov 2013; J R Spencer and M E
Lamb (eds), Children and Cross-Examination: Time to Change the Rules? (2012). The Court of Appeal
has acknowledged that ‘none of the characteristics of childhood . . . carry with them the implicit stigma
that children should be deemed in advance to be somehow less reliable than adults’: R v B [2010] EWCA
Crim 4 at [40].
148  J R Spencer and R H Flin, The Evidence of Children: The Law and the Psychology (2nd ed 1993) 307.
Me a sures Designed to E a se the Burden on Witnesses 377

postponements, ensuring barristers use simple language, encouraging children to say

whether there is something they do not understand and arranging for the child to
have regular breaks’.149 The question to be considered is what further measures are, or
should be, available.
The Court of Appeal has acknowledged that there is a general responsibility on the
part of trial judges to ensure the appropriate treatment of witnesses in criminal cases:
The trial judge is . . . obliged to have regard not only to the need to ensure a fair trial
for the defendant but also to the reasonable interests of other parties to the court
process, in particular witnesses, and among witnesses particularly those who are
obliged to relive by describing in the witness box an ordeal to which they say they
have been subject. It is the clear duty of the trial judge to do everything he can, con-
sistently with giving the defendant a fair trial, to minimise the trauma suffered by
other participants.150
In addition, a number of more substantial measures have been adopted in legislation
in an attempt to assist witnesses in criminal proceedings, including in particular
child witnesses.151 These measures will be examined in Section 4.2. As will be seen,
the statutory provisions in question have been promulgated with the laudable but
sometimes apparently elusive goal in mind of enhancing the quality of evidence and
protecting witnesses, while at the same time protecting the right of the defendant to
a fair trial.152

4.1  Live Links
In civil cases rule 32.3 of the Civil Procedure Rules very simply provides: ‘The court may
allow a witness to give evidence through a video link or by other means.’
In Polanski v Condé Nast Publications Ltd the House of Lords considered the applica-
bility of rule 32.3 in the case of a fugitive who sought to bring a libel action. Lord Nicholls
of Birkenhead concluded:
No doubt special cases may arise. But the general rule should be that in respect of proceed-
ings properly brought in this country, a claimant’s unwillingness to come to this country

149  J R Spencer and R H Flin, The Evidence of Children: The Law and the Psychology (2nd ed 1993)

307. See also M Bowes, ‘Children Who Deserve a Fair Hearing’, The Times, 15 Feb 2005, Law, 7;
B Richmond, ‘Cross-Examining Young Witnesses’ (2011) 175 Criminal Law and Justice Weekly 69.
150  R v Brown [1998] 2 Cr App R 364, 371.
151 See generally J R Spencer and M E Lamb (eds), Children and Cross-Examination:  Time to

Change the Rules? (2012). For comparative perspectives see the decision of the Constitutional Court
of South Africa in DPP, Transvaal v Minister for Justice and Constitutional Development [2009] ZACC
8; and N Bala, A Evans, and E Bala, ‘Hearing the Voices of Children in Canada’s Criminal Justice
System: Recognising Capacity and Facilitating Testimony’ (2010) 22 Child and Family Law Quarterly
21; D Caruso and T Cross, ‘The Case in Australia for Further Reform to the Cross-Examination
and Court Management of Child Witnesses’ (2012) 16 International Journal of Evidence and Proof
364; E Davies, E Henderson, and K Hanna, ‘Facilitating Children to Give Best Evidence:  Are There
Better Ways to Challenge Children’s Testimony?’ (2010) 34 Criminal Law Journal 347; Reid Howie
Associates, Vulnerable and Intimidated Witnesses:  Review of Provisions in Other Jurisdictions
(2002).
152  The Director of Public Prosecutions between 2003 and 2008 wrote optimistically that this was

an attainable goal:  ‘It is possible to find a balance that improves the respect with which victims
and witnesses are treated, while at the same time upholding defendant rights and fair trial princi-
ples’: K Macdonald, ‘Our System of Justice Must Enjoy Public Confidence’, The Independent, 1 Feb
2005, 27.
378
Witnesses

because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for
making a [video conferencing] order.153
Section 51 of the Criminal Justice Act 2003 makes provision for the use of live links in
criminal proceedings. For the purposes of section 51 a live link154 is
a live television link or other arrangement by which a witness, while at a place in the
United Kingdom which is outside the building where the proceedings are being held, is
able to see and hear a person at the place where the proceedings are being held and to be
seen and heard by . . . [:]
(a) the defendant or defendants,
(b) the judge or justices (or both) and the jury (if there is one),
(c) legal representatives acting in the proceedings, and
(d) any interpreter or other person appointed by the court to assist the witness.155
The effect of section 51 is that a witness, other than the defendant, may give evidence
through a live link if the court so directs.156 Such a direction is to be given only if ‘the
court is satisfied that it is in the interests of the efficient or effective administration of jus-
tice for the person concerned to give evidence in the proceedings through a live link’.157
‘In deciding whether to give a direction . . . the court must consider all the circumstances
of the case’158 including in particular the following:
(a) the availability of the witness,
(b) the need for the witness to attend in person,
(c) the importance of the witness’s evidence to the proceedings,
(d) the views of the witness,
(e) the suitability of the facilities at the place where the witness would give evidence
through a live link,
(f) whether a direction might tend to inhibit any party to the proceedings from effec-
tively testing the witness’s evidence.159
Where a direction is given by the court the witness may not give evidence otherwise than
through a live link.160 The court may, however, rescind the direction ‘if it appears to the
court to be in the interests of justice to do so’.161 The jury may be given ‘such direction as
[the judge] thinks necessary to ensure that the jury gives the same weight to the evidence
as if it had been given by the witness in the courtroom or other place where the proceed-
ings are held’.162
Provision is also made in section 32 of the Criminal Justice Act 1988 for a person other
than the accused, with the leave of the court, to give evidence through a live link in cer-
tain proceedings if the witness is outside the United Kingdom.163

153  [2005] UKHL 10, [2005] 1 WLR 637 at [33]. See generally A Melville-Brown, ‘Screen Test’ (2005)

102(10) Law Society’s Gazette 27. Polanski was applied in McGlinn v Waltham Contractors Ltd [2006]
EWHC 2322 (TCC), [2006] BLR 489, (2006) 108 Con LR 43.
154  See generally R Taylor, M Wasik, and R Leng, Blackstone’s Guide to the Criminal Justice Act 2003

(2004) 75–7.
155  Criminal Justice Act 2003, s 56(2), s 56(3). 156 S 51(1). 157  S 51(4)(a).
158 S 51(6). 159 S 51(7). 160 S 52(2). 161 S 52(3). 162 S 54(2).
163  Notably, ‘there is no power for a judge to permit, even by consent, evidence to be given by phone’: R v

Hampson [2012] EWCA Crim 1807, [2014] 1 Cr App R 4 at [16].

Me a sures Designed to E a se the Burden on Witnesses 379

4.2  The Youth Justice and Criminal Evidence Act 1999

4.2.1 Special Measures Directions for Vulnerable and Intimidated Witnesses
Section 19 of the 1999 Act makes provision for special measures directions to be given.164
Lord Justice Auld in his Review described the provisions of the Act relating to special
measures as ‘extraordinarily complicated and prescriptive’.165

4.2.1.1  Eligible Witnesses

There are essentially four categories of witnesses, not including the defendant, who are
eligible for consideration for ‘special measures’. The following are the four categories of
eligible witness:
• Category 1: A witness ‘under the age of 18 at the time of the hearing’.166
• Category 2: It is considered by the court ‘that the quality of evidence given by the
witness is likely to be diminished by reason of’167 mental disorder168 or ‘a significant
impairment of intelligence and social functioning’.169
• Category 3: It is considered by the court ‘that the quality of evidence given by the wit-
ness is likely to be diminished by reason of’170 the fact ‘that the witness has a physical
disability or is suffering from a physical disorder’.171
• Category 4:  The witness is one in respect of whom ‘the court is satisfied that
the quality of evidence given by the witness is likely to be diminished by reason
of fear or distress on the part of the witness in connection with testifying in
the proceedings’.172 In determining whether a witness falls within the fourth
category,

the court must take into account, in particular—

(a) the nature and alleged circumstances of the offence to which the proceedings relate;
(b) the age of the witness;
(c) such of the following matters as appear to the court to be relevant, namely—
(i) the social and cultural background and ethnic origins of the witness,
(ii) the domestic and employment circumstances of the witness, and
(iii) any religious beliefs or political opinions of the witness;
(d) any behaviour towards the witness on the part of—
(i) the accused,
(ii) members of the family or associates of the accused, or
(iii) any other person who is likely to be an accused or a witness in the proceedings.173

164 See generally M Hall, ‘Children Giving Evidence through Special Measures in the Criminal

Courts:  Progress and Problems’ (2009) 21 Child and Family Law Quarterly 65; P Roberts, D Cooper,
and S Judge, ‘Coming Soon to a Court Near You! Special Measures for Vulnerable and Intimidated
Witnesses: Part 1’ (2005) 169 Justice of the Peace 748; P Roberts, D Cooper, and S Judge, ‘Coming Soon to
a Court Near You! Special Measures for Vulnerable and Intimidated Witnesses: Part 2’ (2005) 169 Justice
of the Peace 769.
165  Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001) Ch 11 para 126, acces-

sible via http://www.criminal-courts-review.org.uk/.

166  S 16(1)(a). 167  S 16(1)(b). 168  S 16(2)(a)(i). 169  S 16(2)(a)(ii).
170  S 16(1)(b). 171  S 16(2)(b). 172 S 17(1). 173 S 17(2).
380
Witnesses

A witness who is a complainant of a sexual offence or an offence of exploitation, or who

is a witness in proceedings relating to specified offences involving weapons, is automati-
cally an eligible witness under the fourth category unless the witness has informed the
court of the witness’s wish not to be so eligible.174
The quality of evidence means ‘its quality in terms of completeness, coherence and
accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence
to give answers which address the questions put to the witness and [which] can be under-
stood both individually and collectively’.175
There is evidence of practical difficulties being encountered in ensuring that all eligi-
ble witnesses were identified as such: ‘In 2004, the Witness Service received 20,146 refer-
rals of people who were identified as vulnerable or intimidated and therefore eligible
for special measures, [but] Witness Service personnel subsequently identified a further
18,466’.176
The Act makes provision for eight different special measures, which will be outlined in
Section 4.2.1.2. Of these measures, two are unavailable to a witness who is eligible only
under category 4.177
Having determined that a witness is an eligible witness,
the court must then—
(a) determine whether any of the special measures available in relation to the witness (or
any combination of them) would, in its opinion, be likely to improve the quality of
evidence given by the witness; and
(b) if so—
(i) determine which of those measures (or combination of them) would, in
its opinion, be likely to maximise so far as practicable the quality of such
evidence; and
(ii) give a direction under this section providing for the measure or measures so
determined to apply to evidence given by the witness.178
In determining whether any measure or measures would be likely to improve, or to maxi-
mize so far as practicable, the quality of evidence,
the court must consider all the circumstances of the case, including in particular—
(a) any views expressed by the witness; and
(b) whether the measure or measures might tend to inhibit such evidence being effec-
tively tested by a party to the proceedings.179
Special additional rules apply to child witnesses, as will be explained in Section 4.2.1.3.

4.2.1.2  The Special Measures

The following are the measures in relation to which special measures directions may
be made.

174  S 17(4)–(6). 175 S 16(5).

176  H Reeves, ‘Witness Support’ [June 2005] Counsel 18, 19. See also M Burton, R Evans, and A Sanders,
‘Implementing Special Measures for Vulnerable and Intimidated Witnesses: The Problem of Identification’
[2006] Criminal Law Review 229.
177 S 18(1). 178 S 19(2). 179 S 19(3).
Me a sures Designed to E a se the Burden on Witnesses 381

Screens
This is a measure, prescribed by section 23, whereby ‘the witness, while giving testimony
or being sworn in court, [is] prevented by means of a screen or other arrangement from
seeing the accused’.180 Such an arrangement must not, however,
prevent the witness from being able to see, and to be seen by—
(a) the judge or justices (or both) and the jury (if there is one);
(b) legal representatives acting in the proceedings; and
(c) any interpreter or other person appointed (in pursuance of the direction or other-
wise) to assist the witness.181
‘Provided the jury [are] correctly instructed as to the implications of the use of screens, . . . it
cannot possibly be the case . . . that the fact that a witness gives evidence without screens
requires all the rest to do so as well.’182

Live Links
This measure, which allows ‘the witness to give evidence by means of a live link’,183 stands
alongside the provisions on live links contained in the Criminal Justice Act 2003, exam-
ined in Section 4.1. An important difference is that a live link under the Youth Justice and
Criminal Evidence Act 1999 allows a witness not to be seen and heard by the defendant.184
Where a direction has been made, ‘the witness may not give evidence in any other way
without the permission of the court’.185 Such permission may be given ‘if it appears to the
court to be in the interests of justice to do so’.186

Evidence in Private
The provisions of section 25 of the Youth Justice and Criminal Evidence Act 1999 are
self-explanatory:
(1) A special measures direction may provide for the exclusion from the court, during the
giving of the witness’s evidence, of persons of any description specified in the direction.
(2) The persons who may be so excluded do not include—
(a) the accused,
(b) legal representatives acting in the proceedings, or
(c) any interpreter or other person appointed (in pursuance of the direction or other­
wise) to assist the witness.
(3) A  special measures direction providing for representatives of news gathering or
reporting organisations to be so excluded shall be expressed not to apply to one
named person who—
(a) is a representative of such an organisation, and

180 S 23(1).
181  S 23(2). In A-G for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff [2005] UKPC 31

the Privy Council held that, in the circumstances of the case, the requirements of a fair trial had not been
compromised by the breach of s 23 arising from the fact that (at [2]‌) ‘the arrangement of the courtroom and
screen were such that the witness could not be seen by both counsel at once. Accordingly, it was decided
that counsel should change places, so that each could see the witness while questioning her. Both could, of
course, hear her throughout’.
182  R v Brown [2004] EWCA Crim 1620 at [12]. 183 S 24(1). 184 S 24(8).
185 S 24(2). 186 S 24(3).
382
Witnesses

(b) has been nominated for the purpose by one or more such organisations,
unless it appears to the court that no such nomination has been made.
(4) A special measures direction may only provide for the exclusion of persons under
this section where—
(a) the proceedings relate to a sexual offence or an offence under section 4 of the
Asylum and Immigration (Treatment of Claimants, etc) Act 2004; or
(b) it appears to the court that there are reasonable grounds for believing that any
person other than the accused has sought, or will seek, to intimidate the witness
in connection with testifying in the proceedings.187

No Wigs or Gowns
This is a measure whereby ‘the wearing of wigs or gowns [may] be dispensed with during
the giving of the witness’s evidence’.188

Video-Recorded Evidence-in-Chief
This measure189 allows ‘a video recording of an interview of the witness to be admitted as
evidence in chief of the witness’.190 A direction is not, however, to be made in respect of
the admission of a recording or a part of a recording ‘if the court is of the opinion, having
regard to all the circumstances of the case, that in the interests of justice the recording,
or that part of it, should not be so admitted’.191 The fact that the interview was conducted
in breach of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing
Victims and Witnesses, and Guidance on Using Special Measures192 is relevant but not
decisive: ‘the prime consideration is the reliability of the videoed evidence, which will
normally be assessed by reference to the interview itself, the conditions under which it
was held, the age of the child, and the nature and extent of any breach of the Code’.193
In considering whether any part of a recording should not be admitted, ‘the court must
consider whether any prejudice to the accused which might result from that part being
so admitted is outweighed by the desirability of showing the whole, or substantially the
whole, of the recorded interview’.194 Even where a direction has provided for a recording
to be admitted, the court may subsequently direct that it not be admitted if it appears to
the court that the witness, without the agreement of the parties,195 will be unavailable
for cross-examination,196 or if ‘any Criminal Procedure Rules requiring disclosure of the
circumstances in which the recording was made have not been complied with to the satis-
faction of the court’.197 Where a matter has, in the opinion of the court, been dealt with in
the recorded testimony, no further evidence-in-chief in relation to that matter is allowed

187  Cf, in the civil context, Deripaska v Cherney [2012] EWCA Civ 1235, [2013] CP Rep 1. See further,

on the position of vulnerable witnesses in civil proceedings, L McCormick, ‘A Civil Question . . .’ (2013) 163
New Law Journal 14.
188 S 26.
189  See generally R Denyer, ‘Video Recorded Evidence’ (2011) 175 Criminal Law and Justice Weekly 253;

D Heraghty, ‘Gearing up for Greater Use of Video Evidence’ (2003) 153 New Law Journal 460; J R Spencer,
‘Special Measures and Unusual Muddles’ [2008] 6 Archbold News 7.
190
 S 27(1). 191 S 27(2). 192
  Now in its 2011 edition.
193
  R v K [2006] EWCA Crim 472, [2006] 2 Cr App R 10, (2006) 170 JP 558 at [25]. See also R v Powell
[2006] EWCA Crim 3, [2006] 1 Cr App R 31 at [26]: ‘The discretion under s 27(2) is a wide one; it requires the
judge to look at the whole of the circumstances of the case and apply an interests of justice test. The interests
of justice do not include the interests of the defendant alone.’
194
 S 27(3).   195  S 27(4)(a)(ii).   196  S 27(4)(a)(i).   197  S 27(4)(b).
Me a sures Designed to E a se the Burden on Witnesses 383

without the permission of the court.198 Such permission may be given ‘if it appears to the
court to be in the interests of justice to do so’.199
On an application on behalf of a witness who is an adult complainant of a sexual offence
in a trial on indictment, ‘the court must give a special measures direction in relation to
the complainant that provides for any relevant recording to be admitted [as evidence in
chief]’,200 unless ‘the court is of the opinion, having regard to all the circumstances of the
case, that in the interests of justice the recording . . . should not be so admitted’.201 The rule
requiring a direction ‘does not apply to the extent that the court is satisfied that compli-
ance with it would not be likely to maximise the quality of the complainant’s evidence so
far as practicable (whether because the application to that evidence of one or more other
special measures available in relation to the complainant would have that result or for any
other reason)’.202
To what extent is it permissible to accede to a request from the jury for a video record-
ing to be replayed? The Court of Appeal has observed that
the replaying of video evidence is a departure from the normal method of conducting
a criminal trial and . . . this should only take place where there are exceptional reasons.
That is, of course, because the replaying of such evidence disturbs the traditional bal-
ance of a trial and may be seen as giving the prosecution a second bite at the evidential
cherry. However, . . . that general observation does not derogate from the propriety of
such a course being followed when a jury has requested to review the evidence of a
complainant for the purpose of seeing how the complainant gave his or her evidence,
as opposed simply to being reminded of the content of that evidence, the judge being
well able to remedy the latter position without resort to a re-run of the video film,
always provided that he gives an appropriate ‘balancing’ direction to the jury [that is,
one in which the jury is reminded of the cross-examination and re-examination of the
complainant]. 203
It is clear that
the principal benefit of pre-trial evidence-taking would be to remove the . . . witness from
the formal and intimidating environment of the court room. An additional benefit cred-
ited to pre-recorded examination-in-chief is that the testimony is likely to be more reliable
when it is taken much closer to the event in question.204

Video-Recorded Cross-Examination and Re-Examination

Section 28 of the Youth Justice and Criminal Evidence Act 1999 states that a direc-
tion providing for a video recording to be admitted as evidence-in-chief may also pro-
vide for any cross-examination and re-examination to be video recorded, 205 and for
the recording to be admitted as the witness’s evidence under cross-examination or on
re-examination.206 The introduction of video-recorded cross-examination would, in
protecting the witness from contemporaneous cross-examination, have the potential
to reduce the trauma that might be inflicted by the criminal justice process, especially
in cases involving child witnesses. Furthermore, the effect on juries of the use of the
measure in such cases might be expected to be minimal: it must be remembered that,

198 S 27(5)(b).   199 S 27(7).   200 S 22A(7).   201 S 27(2).   202  S 22A(9).

203  R v Mullen [2004] EWCA Crim 602, [2004] 2 Cr App R 18 at [63] (italics in original).
204  D Cooper, ‘Pigot Unfulfilled:  Video-Recorded Cross-Examination under Section 28 of the Youth

Justice and Criminal Evidence Act 1999’ [2005] Criminal Law Review 456, 463.
205  S 28(1)(a). 206  S 28(1)(b).
384
Witnesses

already, ‘most juries now see the child only through a television monitor for both the
video interview and cross-examination’.207
A pilot scheme to test the operation of section 28 has taken place, with the Ministry
of Justice announcing in September 2014 that it will, ‘subject to the evaluation of the
pilots’, have ‘set out a programme for national roll-out of pre-trial cross-examination
for child victims’ by March 2015, with the intention of completing the national roll-out
by March 2017.208

Intermediaries
The provisions of section 29 of the Youth Justice and Criminal Evidence Act 1999 are
self-explanatory:
(1) A  special measures direction may provide for any examination of the witness
(however and wherever conducted) to be conducted through an interpreter
or other person approved by the court for the purposes of this section (‘an
intermediary’).
(2) The function of an intermediary is to communicate—
(a) to the witness, questions put to the witness, and
(b) to any person asking such questions, the answers given by the witness in reply
to them,
and to explain such questions or answers so far as necessary to enable them to be under-
stood by the witness or person in question.

(3) Any examination of the witness in pursuance of subsection (1) must take place in the
presence of such persons as Criminal Procedure Rules or the direction may provide,
but in circumstances in which—
(a) the judge or justices (or both) and legal representatives acting in the proceedings
are able to see and hear the examination of the witness and to communicate with
the intermediary, and
(b) (except in the case of a video recorded examination) the jury (if there is one) are
able to see and hear the examination of the witness. . . .
(5) A person may not act as an intermediary in a particular case except after making a
declaration, in such form as may be prescribed by Criminal Procedure Rules, that he
will faithfully perform his function as intermediary.209
This measure is not available in respect of a witness who is eligible only under
category 4. 210

207  L Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (2007) 644. See also M Hall,

‘Giving Evidence at Age 4: Just Means to Just Ends?’ [2009] Family Law 608.
208  Ministry of Justice, Our Commitment to Victims (2014) section 2 (bold font removed).
209  See generally L Ellison, ‘Cross-Examination and the Intermediary: Bridging the Language Divide?’

[2002] Criminal Law Review 114. Ellison argues: ‘The use of intermediaries may facilitate more effective
communication but . . . fundamental obstacles to truly empathic communication will remain’ (at 127).
See also, generally, P Cooper and D Wurtzel, ‘Better the Second Time Around? Department of Justice
Registered Intermediaries Schemes and Lessons from England and Wales’ (2014) 65 Northern Ireland Legal
Quarterly 39.
210 S 18(1).
Me a sures Designed to E a se the Burden on Witnesses 385

Aids to Communication
Section 30 provides:  ‘A special measures direction may provide for the witness, while
giving evidence (whether by testimony in court or otherwise), to be provided with such
device as the court considers appropriate with a view to enabling questions or answers to
be communicated to or by the witness despite any disability or disorder or other impair-
ment which the witness has or suffers from.’
This measure is not available in respect of a witness who is eligible only under
category 4.211

4.2.1.3  Child Witnesses

There is a specific set of rules that is applicable to a witness, other than the defendant,
who is under 18 at the time of the hearing (or, where the admissibility of a video record-
ing is at issue, under 18 when the recording was made).212 These important rules are
additional to the general rules on eligible witnesses examined in Sections 4.2.1.1 and
4.2.1.2.213 In essence, the ‘primary rule’ is (1) that any relevant video recording must
be admitted as evidence-in-chief 214 unless the court is of the opinion, having regard to
all the circumstances of the case, that the interests of justice require otherwise; 215 and
(2) that ‘any evidence given by the witness in the proceedings which is not given by
means of a video recording (whether in chief or otherwise) [is] to be given by means of
a live link’.216 This rule does not, however, apply if ‘the court is satisfied that compliance
with it would not be likely to maximise the quality of the witness’s evidence so far as
practicable (whether because the application to that evidence of one or more other spe-
cial measures available in relation to the witness would have that result or for any other
reason)’.217 Additionally, a child witness may ‘opt out’ of giving his or her evidence in
accordance with this rule if the court is satisfied, taking into account specified factors,
that not giving evidence in this way ‘would not diminish the quality of the witness’s
evidence’.218 If, as a consequence of ‘opting out’, the witness would be liable to give
evidence as testimony in court (rather than by live link), then the witness is to give evi-
dence from behind a screen 219 unless the court is satisfied that this ‘would not be likely
to maximise the quality of the witness’s evidence so far as practicable (whether because
the application to that evidence of one or more other special measures available in rela-
tion to the witness would have that result or for any other reason)’.220 The witness may
also ‘opt out’ of the requirement to give evidence from behind a screen if the court is
satisfied, taking into account specified factors, that this ‘would not diminish the qual-
ity of the witness’s evidence’.221 The factors to be taken into account in determining
whether a witness may ‘opt out’ of the requirement in relation to a live link or a screen
are ‘(a) the age and maturity of the witness; (b) the ability of the witness to understand
the consequences of giving evidence otherwise than in accordance with the [require-
ment in question]; (c) the relationship (if any) between the witness and the accused;
(d) the witness’s social and cultural background and ethnic origins; [and] (e) the nature
and alleged circumstances of the offence to which the proceedings relate’; as well as any
other factors the court considers relevant.222

211 S 18(1). 212  S 21(9), s 22.

213  See generally L C H Hoyano, ‘Coroners and Justice Act 2009:  Special Measures Directions Take
Two: Entrenching Unequal Access to Justice?’ [2010] Criminal Law Review 345; L C H Hoyano, ‘Variations
on a Theme by Pigot: Special Measures Directions for Child Witnesses’ [2000] Criminal Law Review 250.
214  S 21(3)(a). 215  S 21(4)(b). 216  S 21(3)(b). 217  S 21(4)(c). 218  S 21(4)(ba).
219  S 21(4A). 220  S 21(4B)(b). 221  S 21(4B)(a). 222  S 21(4C).
386
Witnesses

In R (D) v Camberwell Green Youth Court 223 the House of Lords rejected the argument
that particular special measures directions would constitute a violation of the general
fair trial guarantee of Article 6 and of Article 6(3)(d).224 In the words of Baroness Hale of
Richmond:
All the evidence is produced at the trial in the presence of the accused, some of it in
pre-recorded form and some of it by contemporaneous television transmission. The
accused can see and hear it all. The accused has every opportunity to challenge and
question the witnesses against him at the trial itself. The only thing missing is a face
to face confrontation, but . . . the Convention does not guarantee a right to face to face
confrontation.225
This demonstrates a reluctance to find measures designed to ease the burden on witnesses
to be in violation of human rights guarantees. The jurisprudence of the Supreme Court of
Canada 226 and the US Supreme Court 227 is in a similar vein.228

4.2.1.4 Warnings
Section 32 provides:
Where on a trial on indictment with a jury evidence has been given in accordance with a
special measures direction, the judge must give the jury such warning (if any) as the judge
considers necessary to ensure that the fact that the direction was given in relation to the
witness does not prejudice the accused.
There is no requirement, where such a warning has been given at the time of the evidence
being given, for it to be repeated in the summing-up. The Court of Appeal observed in the
context of a consideration of the use of screens:
The question is whether effectively the judge has got across to the jury the essential matter
of the use of screens and the conclusions that they should draw and not draw from it. That
is much more likely to impress itself on the jury if it is given at the time that the witnesses
give evidence than if it is repeated at a later date in the summing-up. Indeed, for the judge
to revert to it might in some circumstances give the matter more emphasis, derogatory to
the defendants, than it deserves.229

223  [2005] UKHL 4, [2005] 1 WLR 393. See generally J Doak, ‘Child Witnesses: Do Special Measures

Directions Prejudice the Accused’s Right to a Fair Hearing?—R v Camberwell Green Youth Court, ex
p D; R v Camberwell Green Youth Court, ex p G’ (2005) 9 International Journal of Evidence and Proof
291; R Powell, ‘R (D)  v Camberwell Green Youth Court—Child Witnesses Deemed to be in “Need of
Special Protection” and the European Convention’ (2006) 18 Child and Family Law Quarterly 562; G
Stewart, G Carter Stephenson, and M Hardie, ‘Child Witnesses’ (2005) 149 Solicitors’ Journal 194. See
also M Burton, R Evans, and A Sanders, ‘Protecting Children in Criminal Proceedings: Parity for Child
Witnesses and Child Defendants’ (2006) 18 Child and Family Law Quarterly 397.
224  Art 6(3)(d) is considered in Chapter 11. 225  [2005] UKHL 4, [2005] 1 WLR 393 at [49].
226  R v L (D O) [1993] 4 SCR 419; R v Levogiannis [1993] 4 SCR 475; R v JZS 2010 SCC 1, [2010] 1 SCR

3 (see generally J Barrett, ‘R v S (J)—Facilitating Children’s Testimony through the Presumptive Use of
Screens and CCTV’ (2011) 57 Criminal Law Quarterly 370).
227  Maryland v Craig 497 US 836 (1990).
228  See generally M Daniele, ‘Testimony through a Live Link in the Perspective of the Right to

Confront Witnesses’ [2014] Criminal Law Review 189; L C H Hoyano, ‘Striking a Balance between
the Rights of Defendants and Vulnerable Witnesses:  Will Special Measures Directions Contravene
Guarantees of a Fair Trial?’ [2001] Criminal Law Review 948.
229  R v Brown [2004] EWCA Crim 1620 at [21].
Me a sures Designed to E a se the Burden on Witnesses 387

4.2.1.5  Surveys of Vulnerable and Intimidated Witnesses and Other Research Findings
Research has been undertaken into the operation of the special measures provisions of
the Youth Justice and Criminal Evidence Act 1999. One research project involved gather-
ing the views of vulnerable and intimidated witnesses (‘VIWs’) on their experiences. The
research consisted of surveys undertaken with samples of VIWs. Phase 1 was conducted
before the implementation of the relevant provisions, and phase 2 after the majority of
special measures had been introduced in the Crown Court and had had time to ‘bed in’.
On the general experience of being a witness, some of the findings of the research were
as follows:230
• Most vulnerable victims and witnesses found their experience stressful, although there
was a reduction in these feelings between phases 1 and 2, both overall (from 77% to
70%) and specifically relating to the court environment (from 27% to 17%). VIWs using
special measures in phase 2 were less likely than those not using measures to experi-
ence anxiety.
• The most commonly reported causes of anxiety were seeing the defendant in court,
(mentioned by 24%) and not knowing what would happen (mentioned by 17%). . . .
• There has been a small . . . increase in the proportion of VIWs who said that they were
satisfied overall with their experience, from 64 per cent to 69 per cent. . . . There has
been a corresponding . . . decrease in the proportion expressing that they were ‘very dis-
satisfied’ overall, from 22 per cent to 17 per cent.
• In phase 2, VIWs using special measures were more likely to be satisfied overall com-
pared with those not using these measures.
• Overall satisfaction has increased mostly among women and intimidated witnesses.
• Dissatisfaction was strongly associated with whether witnesses felt intimidated.
• 61 per cent of VIWs said that if they were asked to be a witness again, they would be
likely to agree to this. However, only 44 per cent of VIWs said they would be ‘happy’ to
be a witness again.
• There was a strong correlation between overall satisfaction and likelihood to agree to
being a witness again, with 70 per cent of those satisfied saying they would be likely
compared with only 33 per cent of those dissatisfied. . . .
• VIWs receiving special measures were more likely to consider that the [criminal justice
system] meets the needs of victims, is effective in bringing criminals to justice and
treats witnesses fairly and with respect.
A number of the findings of the research that were of specific relevance to the issue of the
use of special measures were as follows:231
• The use of interpreters, signers and other intermediaries was negligible.
• The use of video-recorded statements among witnesses aged under 17[232] rose from
30 per cent in phase 1 to 42 per cent in phase 2. In phase 2, nine in ten using this found
it helpful.

230  B Hamlyn, A Phelps, J Turtle, and G Sattar, Are Special Measures Working? Evidence from Surveys of

Vulnerable and Intimidated Witnesses (Home Office Research Study 283) (2004) 102–3.

231  B Hamlyn, A Phelps, J Turtle, and G Sattar, Are Special Measures Working? Evidence from Surveys of

Vulnerable and Intimidated Witnesses (Home Office Research Study 283) (2004) 80–1.

232  This was then the age under which a witness was a child witness (now 18).
388
Witnesses

• In phase 1, almost three-quarters of VIWs thought that it would have been helpful to
have been cross-examined on videotape before the trial. . . .
• In phase 1, 43 per cent of witnesses under 17 who gave evidence said they were offered
use of a live TV link, this doubling to 83 per cent in phase 2. A further 15 per cent of
adult witnesses in phase 2 were offered this facility. At phase 2, 90 per cent of all wit-
nesses using this facility found it helpful.
• In phase 2, one in eight (13%) reported use of screens in court, up from only 3 per cent
in phase 1. Sixty per cent of VIWs in phase 2 who did not have access to this facility or
a live TV link thought they would have been helpful.
• Removal of wigs and gowns at Crown Court was relatively rare, although it increased
from 8 per cent to 15 per cent between survey phases.
• Most of the VIWs for whom the public gallery had been cleared, thought this special
measure was helpful. . . .
• In phase 1, only 12 per cent of VIWs said they had been consulted about the use of
measures currently available, although this rose nearly three-fold to 32 per cent in
phase 2. Half (51%) of sex offence victims said they were consulted. At phase 2, 87 per
cent of witnesses who were consulted about the use of measures said that their views
had been acted upon at least to some extent.
• A third of VIWs in phase 2 who used special measures said that these enabled them to
give evidence they would not otherwise have been willing or able to give. This figure
was particularly high for sex offence victims (44%).
• Overall, the use of special measures had increased, in particular for live television link,
video-recorded evidence-in-chief, and removal of wigs and gowns.
• The highest level of unmet need was for measures that resulted in the witness avoiding
seeing the defendant such as screens and live TV links. However, the level of unmet
need among VIWs giving evidence has reduced significantly from 50 per cent to 31 per
cent between the survey phases.
A second research project sought to examine the effectiveness of criminal justice agencies
in implementing the special measures.233 The key findings are as follows:
• The police continue to experience difficulties identifying . . . VIWs . . . and the Crown
Prosecution Service (CPS) rarely identify VIWs unless the police have already done
so. Often VIWs were first identified by the Witness Service when they arrived at court.
This makes it extremely difficult to arrange for special measures if they are needed.
• . . . Video recordings were made of only a minority of VIW interviews . . .
• Video recorded evidence and the live television link (CCTV) are highly regarded by
the police, CPS, the courts and Witness Services and the VIWs who use them. The use
of screens is less highly regarded by agencies, although they have advantages for wit-
nesses. The removal of wigs and gowns and clearing the public gallery were rarely used,
although they could be very helpful for some witnesses.234

233  M Burton, R Evans, and A Sanders, Are Special Measures for Vulnerable and Intimidated Witnesses

Working? Evidence from the Criminal Justice Agencies (Home Office Online Report 01/06) (2006); M Burton,
R Evans, and A Sanders, An Evaluation of the Use of Special Measures for Vulnerable and Intimidated
Witnesses (Home Office Findings 270) (2006).
234  M Burton, R Evans, and A Sanders, An Evaluation of the Use of Special Measures for Vulnerable and

Intimidated Witnesses (Home Office Findings 270) (2006) 1.

Me a sures Designed to E a se the Burden on Witnesses 389

More recently still, a review of witnesses’ experiences has revealed that lack of expertise
in determining possible eligibility for special measures remains a problem, as does vari-
ability in the quality of the relevant equipment:
police officers were not always sufficiently aware of the statutory definitions of vulner-
able or intimidated witnesses and the distinction between them. Front line officers in
particular indicated they tended to use common sense to identify possible vulnerability
and intimidation issues. This has the potential to raise false expectations on the part of
some victims and witnesses if it subsequently transpires that they are, in fact, ineligible.
Conversely it can also lead to other victims and witnesses either not receiving special
measures for which they are eligible, or such needs not being identified until further on in
the process, resulting in late applications being made. . . .
The quality of special measures equipment was variable. Video link equipment ranged
from old technology which was not always reliable, to new state of the art [equipment]
which should be reliable but [which] relevant staff were not trained to use . . . correctly.
As a result proceedings were frequently delayed and witness waiting times on the day
increased.235
It is undeniable in the light of these findings that the relevant provisions of the Youth
Justice and Criminal Evidence Act 1999 have proved to be a qualified success. Other
research has also demonstrated, encouragingly, ‘that applications for special measures,
if pursued to judicial determination, have a very high chance of success. . . . applica-
tions on behalf of child VIWs have an extraordinarily healthy grant rate of 99%, and
fewer than one in ten applications is rejected in relation to vulnerable or intimidated
adults.’236 In addition, there is ‘little support’ from the empirical research ‘for the sug-
gestion that the emotional impact of testimony will be reduced when a witness appears
on the screen, translating into a loss of juror empathy’.237 There is, however, no room for
complacency, and attention also needs to be paid to relevant pre-trial practices and pro-
cedures such as the techniques employed in interviewing witnesses, preparation of wit-
nesses for court, and the provision of appropriate therapy to witnesses.238 Burton, Evans,

235
 HM Crown Prosecution Service Inspectorate, HM Inspectorate of Court Administration, and
HM Inspectorate of Constabulary, Report of a Joint Thematic Review of Victim and Witness Experiences
in the Criminal Justice System (2009) [2.8], [5.38]. See also S Payne, Rape: The Victim Experience Review
(2009) 21–2.
236  P Roberts, D Cooper, and S Judge, ‘Monitoring Success, Accounting for Failure:  The Outcome of

Prosecutors’ Applications for Special Measures Directions under the Youth Justice and Criminal Evidence
Act 1999’ (2005) 9 International Journal of Evidence and Proof 269, 287–8.
237  L Ellison and V E Munro, ‘Do Special Measures Affect Jurors’ Verdicts in Rape Cases?’ (2013) 177

Criminal Law and Justice Weekly 103, 104. See also N J Westera, M R Kebbell, and B Milne, ‘Losing Two
Thirds of the Story:  A  Comparison of the Video-Recorded Police Interview and Live Evidence of Rape
Complainants’ [2013] Criminal Law Review 290.
238 See B Boulter, ‘Treading Carefully’ (2001) 145 Solicitors’ Journal 412; M Bowes, ‘Children who

Deserve a Fair Hearing’, The Times, 15 Feb 2005, Law, 7; R Bull and E Corran, ‘Interviewing Child
Witnesses: Past and Future’ (2002) 4 International Journal of Police Science and Management 315; G Davies
and H Westcott, ‘Investigative Interviewing with Children: Progress and Pitfalls’ in A Heaton-Armstrong,
E Shepherd, G Gudjonsson, and D Wolchover (eds), Witness Testimony:  Psychological, Investigative and
Evidential Perspectives (2006); D Heraghty, ‘Gearing up for Greater Use of Video Evidence’ (2003) 153
New Law Journal 460; M Solon, ‘Taking Care’ (2013) 163 New Law Journal 292; Achieving Best Evidence
in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special
Measures (2011); Home Office, Crown Prosecution Service, and Department of Health, Provision of Therapy
for Child Witnesses Prior to a Criminal Trial: Practice Guidance (2001), available at http://www.cps.gov.uk/
publications/docs/therapychild.pdf; Home Office, Crown Prosecution Service, and Department of Health,
Provision of Therapy for Vulnerable or Intimidated Adult Witnesses Prior to a Criminal Trial:  Practice
Guidance (2001), available at http://www.cps.gov.uk/publications/prosecution/pretrialadult.html. A joint
390
Witnesses

and Sanders argued persuasively that remedial action that might be taken in this area
included: improving the processes for identifying vulnerable and intimidated witnesses;
assessing the needs, and ascertaining the views, of such witnesses individually in order
that the measures best suiting each person might be identified; offering pre-court famil-
iarization routinely; giving consideration to making the visual recording of initial inter-
views mandatory; and achieving better regulation of the Bar in order to provide better
protection against inappropriate cross-examination.239 Arguably, ‘it is the experience of
being cross-examined rather than the environment in which cross-examination occurs
that seems to be the unresolved problem’.240 In this respect it is notable that the Court of
Appeal has expressed its
wish to make the following observations. First, we consider that in cases where it is
necessary and appropriate to have limitations on the way in which the advocate con-
ducts cross-examination, there is a duty on the judge to ensure that those limitations
are complied with. This is important to ensure that vulnerable witnesses are able to
give the best evidence of which they are capable. Where appropriate the judge, in fair-
ness to defendants, should explain the limitations to the jury and the reasons for them.
It is also important that defendants do not perceive, whatever the true position, that
the cross-examination by their advocate was less effective than that of another advo-
cate in eliciting evidence to defend them on allegations such as those raised in the
present case.
This means that the limitations must be clearly defined. . . .
Secondly, we observe that if there is some lapse by counsel in failing to comply with the
limitations on cross-examination, it is important that the judge gives a relevant direction
to the jury when that occurs, both for the benefit of the jury and any other defendant. To

NSPCC and Victim Support report published in late 2004 detailing the experiences of 50 witnesses aged
between seven and 17 who gave evidence in criminal proceedings, the majority in sexual cases, is discussed
in B Esam, ‘Caring for Children in Court: Making a Difference for Child Witnesses’ (2005) 169 Justice of the
Peace 271; H Reeves, ‘Witness Support’ [June 2005] Counsel 18.
239
  M Burton, R Evans, and A Sanders, ‘Vulnerable and Intimidated Witnesses and the Adversarial Process
in England and Wales’ (2007) 11 International Journal of Evidence and Proof 1, 22–3. See also T Ayling,
‘Practise What We Preach’ [Apr 2014] Counsel 31; P Bowden, T Henning, and D Plater, ‘Balancing Fairness
to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses:  An Impossible
Triangulation?’ (2014) 37 Melbourne University Law Review 539; R Boyd and A Hopkins, ‘Cross-Examination
of Child Sexual Assault Complainants: Concerns about the Application of S 41 of the Evidence Act’ (2010)
34 Criminal Law Journal 149; D Caruso, ‘“I Don’t Want to Play Follow the Leader”: Three Proposals for
Reform of the Cross-Examination of Child Witnesses’ [2011] Journal of Commonwealth Criminal Law 254;
A Cossins, ‘Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity
to Confuse?’ (2009) 33 Melbourne University Law Review 68; F Gibb, ‘Call for a Culture Change to Protect
Child Witnesses’, The Times, 12 Sept 2013 (online); E Henderson, ‘Reforming the Cross-Examination
of Children:  The Need for a New Commission on the Testimony of Vulnerable Witnesses’ [2013] 10
Archbold Review 6; E Henderson, ‘Root or Branch? Reforming the Cross-Examination of Children’ [2010]
Cambridge Law Journal 460; T Henning, ‘Obtaining the Best Evidence from Children and Witnesses with
Cognitive Impairments—“Plus Ça Change” or Prospects New?’ (2013) 37 Criminal Law Journal 155; A
Keane, ‘Cross-Examination of Vulnerable Witnesses—Towards a Blueprint for Re-Professionalisation’
(2012) 16 International Journal of Evidence and Proof 175; G Langdon-Down, ‘Sarcastic, Rude: Is this the
Way to Question Child Witnesses?’, The Times, 2 July 2009 (online); J Mitchell, ‘Do You Ever Tell Fibs?
Cross-Examining Children’ [2011] Family Law 962.
240 L Mulcahy, ‘The Unbearable Lightness of Being? Shifts towards the Virtual Trial’ (2008) 35

Journal of Law and Society 464, 489. For a recent perspective, however, see E Henderson, ‘All the
Proper Protections—The Court of Appeal Rewrites the Rules for the Cross-Examination of Vulnerable
Witnesses’ [2014] Criminal Law Review 93; E Henderson, ‘Jewel in the Crown?’ [Nov 2014] Counsel 22.
See also F Gerry, P Mendelle, and P Cooper, ‘Cross-Examination Is a Necessary Evil’, The Times, 26 June
2014 (online).
Me a sures Designed to E a se the Burden on Witnesses 391

leave that direction until the summing-up will in many cases mean that it is much less
effective than a direction given at the time.
Thirdly, . . . for vulnerable witnesses, the traditional style of cross-examination where
comment is made on inconsistencies during cross-examination must be replaced by a
system where those inconsistencies can be drawn to [the attention of] the jury at or about
the time when the evidence is being given and not, in long or complex cases, for that com-
ment to have to await the closing speeches at the end of the trial. One solution would be
for important inconsistencies to be pointed out, after the vulnerable witness has finished
giving evidence, either by the advocate or by the judge, after the necessary discussion with
the advocates.241
A recent controversial suggestion has been that trial judges be given the task of question-
ing vulnerable witnesses.242

4.2.2  No Cross-Examination by Defendant in Person

4.2.2.1  Complainants in Sexual Offence Trials
Section 34 provides that a person charged with a sexual offence may not cross-examine in
person a complainant of that offence, either about that offence or about any other offence
with which he or she is charged.243

4.2.2.2  ‘Protected Witnesses’

Section 35 provides that a person charged with one of a number of specified offences may
not cross-examine in person an alleged witness (who may be the complainant) who is a
‘protected witness’, either about that offence or about any other offence with which he
or she is charged. This applies to alleged witnesses who are co-defendants. The specified
offences fall, in essence, into two categories:
1. The first category consists of the sexual offences listed in section 35(3)(a). In rela-
tion to offences in this category, a ‘protected witness’ is one who is under 18, or was
under 18 when a video recording later admitted as evidence-in-chief was made, or
was under 18 when his or her evidence-in-chief was given.
2. The second category consists of the offences listed in section 35(3)(b), (c), and (d).
These include offences involving kidnapping, false imprisonment, abduction,
cruelty, or violence. In relation to offences in this category, a ‘protected witness’
is one who is under 14, or was under 14 when a video recording later admitted as
evidence-in-chief was made, or was under 14 when his or her evidence-in-chief
was given.

241  R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr App R 2 at [36]–[39].

242  See discussions in P Cooper, ‘Bowler as well as Umpire’ [June 2014] Counsel 13; E Henderson, ‘Judges
as Cross-Examiners: The Starmer v Grieve Debate’ [2014] 5 Archbold Review 3; M Scott, ‘Keir Starmer’s
Proposal: Well-Intentioned but Truly Alarming’, The Times, 10 Apr 2014 (online).
243  See generally L A Iding, ‘Crossing the Line: The Case for Limiting Personal Cross-Examination by

an Accused in Sexual Assault Trials’ (2004) 49 Criminal Law Quarterly 69. On whether claimants alleg-
ing sexual misconduct in civil trials should have the same protection against cross-examination by the
defendant in person, see B Hewson, ‘Cross-Examination in Civil Actions for Assault’ (2002) 146 Solicitors’
Journal 54. Hewson argues (at 54): ‘There is a fundamental difference between the criminal and civil pro-
cess. In a prosecution, the state controls the process. . . . The complainant is a witness, and not represented.
By contrast, in a civil claim, what is at stake is a private dispute about money. . . . An experienced civil judge,
who decides facts as well as law, can be expected to control proceedings effectively, even where a defend-
ant appears in person. He can also compensate any deserving claimant, whose feelings are outraged by a
defendant’s offensive conduct in court.’
392
Witnesses

4.2.2.3 Discretion
Where neither section 34 nor section 35 is applicable, section 36 gives courts an overrid-
ing discretion:
(2) If it appears to the court—
(a) that the quality of evidence given by the witness on cross-examination—
(i) is likely to be diminished if the cross-examination (or further cross-
examination) is conducted by the accused in person, and
(ii) would be likely to be improved if a direction were given under this section, and
(b) that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or fur-
ther cross-examining) the witness in person.
(3) In determining whether subsection (2)(a) applies in the case of a witness the court
must have regard, in particular, to—
(a) any views expressed by the witness as to whether or not the witness is content to
be cross-examined by the accused in person;
(b) the nature of the questions likely to be asked, having regard to the issues in the
proceedings and the defence case advanced so far (if any);
(c) any behaviour on the part of the accused at any stage of the proceedings, both
generally and in relation to the witness;
(d) any relationship (of whatever nature) between the witness and the accused;
(e) whether any person (other than the accused) is or has at any time been charged
in the proceedings with a sexual offence or an offence to which section 35 applies,
and (if so) whether section 34 or 35 operates or would have operated to prevent
that person from cross-examining the witness in person;
(f) any direction under section 19 which the court has given, or proposes to give, in
relation to the witness.
Section 36 does not apply to a witness who is a co-defendant.244

4.2.2.4  Legal Representation

If an accused who is prohibited from cross-examining a witness in person has no legal
representative to conduct the cross-examination on his or her behalf, 245 and if the court
considers it necessary in the interests of justice for the witness to be cross-examined by
a legal representative appointed to represent the interests of the accused, the court must
choose and appoint a qualified legal representative to cross-examine the witness in the
interests of the accused.246

4.2.2.5 Warnings
Section 39(1) provides:
Where on a trial on indictment with a jury an accused is prevented from cross-
examining a witness in person by virtue of section 34, 35 or 36, the judge must give
the jury such warning (if any) as the judge considers necessary to ensure that the accused
is not prejudiced—

244  S 36(4)(a). 245 S 38(3). 246 S 38(4).

Me a sures Designed to E a se the Burden on Witnesses 393

(a) by any inferences that might be drawn from the fact that the accused has been pre-
vented from cross-examining the witness in person;
(b) where the witness has been cross-examined by [an appointed] legal representative . . .,
by the fact that the cross-examination was carried out by such a legal representative
and not by a person acting as the accused’s own legal representative.

4.2.3  Restriction on Sexual History Evidence

The long-overdue abolition of mandatory warnings to juries about convicting on the
uncorroborated evidence of a complainant in a sexual case has been discussed in Section
3.4. The extent to which evidence of a complainant’s sexual conduct on other occasions is
admissible in a rape trial is another issue which for a long time has sparked controversy
and which seems likely to continue to do so. Traditionally, in rape trials, the defence
would be permitted to present evidence or cross-examine the complainant concerning
her sexual history. Notwithstanding the normal rule that evidence must be relevant, such
evidence was admitted routinely without inquiry as to its possible relevance to either the
issues in the case or credibility.247 This was not an acceptable state of affairs and the issue
was referred to a special committee chaired by Heilbron J. The report of that committee
noted that the admission of sexual history evidence was humiliating for rape complain-
ants and led to a significant number of complainants either not reporting or withdrawing
complaints of rape.248 Following recommendations in the Heilbron report, restrictions
on the admission of sexual history evidence were first imposed by section 2 of the Sexual
Offences (Amendment) Act 1976. This provision was rightly criticized for investing too
much discretion in trial judges in determining whether the defence should be permitted
to introduce such evidence.249
Looking further afield, we find that other jurisdictions face similar difficulties in crafting
‘rape shield laws’ in an attempt to regulate the admissibility of sexual history evidence.250
Notable is the experience of Canada, where the rape shield provisions then in operation
were declared unconstitutional by the Supreme Court of Canada in R v Seaboyer,251 on the
basis that they violated the fundamental principle, enshrined in the Canadian Charter of
Rights and Freedoms, that the innocent should not be punished. As a result of the deci-
sion in Seaboyer new provisions were enacted. These are less tightly drafted, according
trial judges much greater latitude in admitting sexual history evidence.252

247 D W Elliott, ‘Rape Complainants’ Sexual Experience with Third Parties’ [1984] Criminal Law

Review 4.
248  Home Office, Report of the Advisory Group on the Law of Rape (Cmnd 6352, 1975).
249 See generally N Kibble, ‘The Sexual History Provisions:  Charting a Course between Inflexible

Legislative Rules and Wholly Untrammelled Judicial Discretion?’ [2000] Criminal Law Review 274; J
Temkin, ‘Sexual History Evidence—The Ravishment of Section 2’ [1993] Criminal Law Review 3.
250  See generally N Kibble, ‘Judicial Discretion and the Admissibility of Prior Sexual History Evidence

under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to your Guns
Means Shooting yourself in the Foot: Part 2’ [2005] Criminal Law Review 263.
251  (1991) 83 DLR (4th) 193.
252  See generally N Kibble, ‘Judicial Discretion and the Admissibility of Prior Sexual History Evidence

under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to your Guns
Means Shooting yourself in the Foot: Part 2’ [2005] Criminal Law Review 263, 266–8; N Kibble, ‘The Sexual
History Provisions:  Charting a Course between Inflexible Legislative Rules and Wholly Untrammelled
Judicial Discretion?’ [2000] Criminal Law Review 274, 282–3; J Temkin, ‘Sexual History Evidence—The
Ravishment of Section 2’ [1993] Criminal Law Review 3, 17–19. Note that the new Canadian provisions
survived a Charter challenge in R v Darrach [2000] 2 SCR 443. See generally J Benedet, ‘Probity, Prejudice
and the Continuing Misuse of Sexual History Evidence’ (2009) 64 Criminal Reports (6th) 72; R J Delisle,
‘Adoption, Sub-Silentio, of the Paciocco Solution to Rape Shield Laws’ (2001) 36 Criminal Reports (5th) 254;
394
Witnesses

New rape shield provisions were introduced in England and Wales in section 41 of the
Youth Justice and Criminal Evidence Act 1999. In essence, section 41 imposes a prima
facie prohibition on the introduction of evidence of any sexual behaviour of the complain-
ant: in a sexual offence trial253 no evidence may be adduced, and no question may be asked
in cross-examination, about the complainant’s sexual behaviour without the leave of the
court.254 Evidence of behaviour that is not ‘sexual’ is not subject to prima facie exclusion
under section 41. Ironically, therefore, it may be in the interests of the prosecution to
argue for the categorization of particular behaviour of the complainant as ‘sexual’ so that
evidence of such behaviour is subject to section 41.
‘Sexual behaviour’ is defined as including ‘sexual experience’.255 The concept of sexual
behaviour has been explained as follows:
In many cases it will be very easy to say what is or is not sexual behaviour, but there are
obviously borderline cases in which the sexuality of what happens may be not so apparent
as to lead on to the conclusion that the behaviour under examination is sexual. It would
not be possible to try to define sexual behaviour further. Indeed, it probably would be fool-
ish to do so. It is really a matter of impression and common sense.256
It has been held to be unnecessary for a sexual experience to have been perceived as one
by the complainant: ‘if the application of the Act did depend on [such] perception . . . then
many vulnerable people, not just young children but also persons with learning difficul-
ties . . ., would lose its protection’.257
In R v Ben-Rejab the Court of Appeal considered that ‘sexual behaviour’
need not involve any other person. The expression is plainly wide enough, in our view, to
embrace an activity of viewing pornography or engaging in sexually-charged messaging
over a live internet connection. That being the case, the question for the court is whether
an indulgence by answering questions in a sexually explicit quiz is ‘any sexual behaviour’
within the meaning of the section. In our judgment it is. What motive can there have been
when engaging in the activity of answering sexually explicit questions unless it was to
obtain sexual pleasure from it?258
Section 41 makes no distinction between sexual behaviour of the complainant with the
accused and sexual behaviour with third parties. This might be regarded as controversial
by anyone of the view that a jury would not be able to understand a case of alleged sexual
assault without knowing of a pre-existing sexual relationship between the parties.
Leave to introduce evidence of the complainant’s sexual behaviour may be granted
only if its refusal ‘might have the result of rendering unsafe a conclusion of the jury or (as
the case may be) the court on any relevant issue in the case’.259 Additionally, there are only
four specific situations in which leave may be granted. These are as follows:
1. The evidence or question relates to a relevant issue in the case and that issue is
not an issue of consent: section 41(3)(a). Clearly contemplated here is relevance
to belief in consent. It is notable that the new substantive law on sexual offences,

S Ozkin, ‘Balancing of Interests: Admissibility of Prior Sexual History under Section 276’ (2011) 57 Criminal
Law Quarterly 327; D Stuart, ‘Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is
Unclear’ (2009) 64 Criminal Reports (6th) 74. For the position in Scotland see P Duff, ‘Human Rights,
Cosmopolitanism and the Scottish “Rape Shield”’ in P Roberts and J Hunter (eds), Criminal Evidence and
Human Rights: Reimagining Common Law Procedural Traditions (2012).
253  See the interesting discussion in R v C [2007] EWCA Crim 2581, [2008] 1 WLR 966.
254 S 41(1). 255  S 42(1)(c). 256  R v Mukadi [2003] EWCA Crim 3765 at [14].
257  R v E [2004] EWCA Crim 1313 at [6]‌.
258  [2011] EWCA Crim 1136, [2012] 1 WLR 2364 at [35]. 259  S 41(2)(b).
Me a sures Designed to E a se the Burden on Witnesses 395

contained in the Sexual Offences Act 2003, permits the defendant to escape
liability only if his belief in consent was reasonable rather than simply hon-
est. The extent to which sexual history evidence may be regarded as relevant in
establishing a reasonable belief in consent may be expected to be rather more
limited than the extent to which it is relevant in establishing a merely honest
belief. 260
2. The evidence or question relates to an issue of consent and the relevant sexual behav-
iour ‘is alleged to have taken place at or about the same time as the event which is the
subject matter of the charge against the accused’: section 41(3)(b).
3. The evidence or question relates to an issue of consent and the relevant sexual
behaviour ‘is alleged to have been . . . so similar . . . to any [alleged] sexual behaviour
of the complainant which . . . took place as part of the event which is the subject mat-
ter of the charge against the accused, or . . . to any other [alleged] sexual behaviour of
the complainant which . . . took place at or about the same time as that event, that the
similarity cannot reasonably be explained as a coincidence’: section 41(3)(c).261
4. ‘The evidence or question . . . relates to any evidence adduced by the prosecution
about any sexual behaviour of the complainant; and . . . in the opinion of the court,
would go no further than is necessary to enable the evidence adduced by the pros-
ecution to be rebutted or explained by or on behalf of the accused’: section 41(5).
In each of the four situations outlined above, ‘the evidence or question must relate to
a specific instance (or specific instances) of alleged sexual behaviour on the part of the
complainant’.262 In relation to the first three situations, section 41(4) provides that ‘no evi-
dence or question shall be regarded as relating to a relevant issue in the case if it appears
to the court to be reasonable to assume that the purpose (or main purpose) for which it
would be adduced or asked is to establish or elicit material for impugning the credibility
of the complainant as a witness’.263
Within a few months of coming into force section 41 was the subject of detailed con-
sideration by the House of Lords in R v A (No 2).264 The question certified for the House

260
 See R v Gjoni [2014] EWCA Crim 691 at [26]: ‘there will be circumstances in which evidence of a
conversation between the defendant and a person other than the complainant will have probative value in
relation to the issue of honest and reasonable belief in consent. Each application must be decided accord-
ing to its own circumstances.’ On the facts of the case, however, the Court held (at [29]):  ‘The fact that
Lee told the appellant he had had sexual intercourse with the complainant on a previous occasion can-
not have amounted to any justification for a belief held by the appellant that she would consent to sexual
intercourse with him when she had explicitly rejected him.’ See also, generally, J McEwan, ‘“I Thought she
Consented”:  Defeat of the Rape Shield or the Defence that Shall not Run?’ [2006] Criminal Law Review
969; J McEwan, ‘Proving Consent in Sexual Cases:  Legislative Change and Cultural Evolution’ (2005) 9
International Journal of Evidence and Proof 1.
261 Italics added. 262  S 41(6). See R v White [2004] EWCA Crim 946.
263 See R v Abdelrahman [2005] EWCA Crim 1367 at [26]: ‘the sole purpose of the proposed questions

in the present case . . . was to establish [the complainant] as a maker of false allegations of rape. That, in our
judgment, is undoubtedly a matter of credibility rather than being related to any substantive issue between
the prosecution and the defence in this case.’ Cf R v Martin [2004] EWCA Crim 916, [2004] 2 Cr App R 22
at [37]: ‘We conclude that, on ordinary principles of interpretation, it was one purpose but not “the purpose”
or “the main purpose” of the questions to impugn the credibility of the complainant.’
264 [2001] UKHL 25, [2001] 2 WLR 1546. See generally D Birch, ‘Rethinking Sexual History

Evidence: Proposals for Fairer Trials’ [2002] Criminal Law Review 531; D Birch, ‘Untangling Sexual History
Evidence: A Rejoinder to Professor Temkin’ [2003] Criminal Law Review 370; G Brennan, ‘Sexual History
Evidence: The Youth Justice and Criminal Evidence Act 1999’ (2002) 8 Queen Mary Law Journal 7; K Cook,
‘Sexual History Evidence:  The Defendant Fights Back’ (2001) 151 New Law Journal 1133; G Firth, ‘The
Rape Trial and Sexual History Evidence—R v A and the (Un)worthy Complainant’ (2006) 57 Northern
396
Witnesses

was as follows: ‘May a sexual relationship between a defendant and complainant be rel-

evant to the issue of consent so as to render its exclusion under section 41 of the Youth
Justice and Criminal Evidence Act 1999 a contravention of the defendant’s right to a
fair trial?’ At issue in this case was evidence of instances of sexual behaviour involving
the defendant and the complainant that had taken place between one week and three
weeks before the alleged rape. The House of Lords held that section 41(3)(b) was clearly
inapplicable since it would be artificial to stretch the phrase ‘at or about the same time’
to encompass sexual behaviour taking place a week or more previously. Lord Hope of
Craighead drew attention to the fact that the explanatory notes to the Act issued by the
Home Office state ‘that it is expected that the phrase “at or about the same time” will
generally be interpreted no more widely tha[n]‌24 hours before or after the offence’.265
The case was, however, remitted to the trial judge to consider whether section 41(3)(c)
might be applicable. The House considered section 3 of the Human Rights Act 1998,
which requires legislation to be interpreted compatibly with the Convention if possible,
to be applicable here. Section 3
requires the court to subordinate the niceties of the language of section 41(3)(c), and in
particular the touchstone of coincidence, to broader considerations of relevance judged
by logical and common sense criteria of time and circumstances. After all, it is realistic to
proceed on the basis that the legislature would not, if alerted to the problem, have wished
to deny the right to an accused to put forward a full and complete defence by advancing
truly probative material. It is therefore possible under section 3 to read section 41, and in
particular section 41(3)(c), as subject to the implied provision that evidence or questioning
which is required to ensure a fair trial under [A]‌rticle 6 of the Convention should not be
treated as inadmissible. The result of such a reading would be that sometimes logically rele­
vant sexual experiences between a complainant and an accused may be admitted under
section 41(3)(c). On the other hand, there will be cases where previous sexual experience
between a complainant and an accused will be irrelevant, eg an isolated episode distant in
time and circumstances. Where the line is to be drawn must be left to the judgment of trial
judges. On this basis a declaration of incompatibility can be avoided. If this approach is
adopted, section 41 will have achieved a major part of its objective but its excessive reach
will have been attenuated in accordance with the will of Parliament as reflected in section
3 of the 1998 Act.266
Thus, in summary,
the effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed
where necessary by applying the interpretative obligation under section 3 of the Human
Rights Act 1998, and due regard always being paid to the importance of seeking to
protect the complainant from indignity and from humiliating questions, the test of

Ireland Legal Quarterly 442; A Kavanagh, ‘Unlocking the Human Rights Act:  The “Radical” Approach
to Section 3(1) Revisited’ [2005] European Human Rights Law Review 259; J McEwan, ‘The Rape Shield
Askew? R v A’ (2001) 5 International Journal of Evidence and Proof 257; P Mirfield, ‘Human Wrongs?’
(2002) 118 Law Quarterly Review 20; M Redmayne, ‘Myths, Relationships and Coincidences:  The New
Problems of Sexual History’ (2003) 7 International Journal of Evidence and Proof 75; P Rook, ‘Restrictions
on Evidence or Questions About the Complainant’s Sexual History’ [2004] 2 Criminal Bar Association
Newsletter 10; D Sandy, ‘R v A:  The Death of the Declaration of Incompatibility?’ (2001) 151 New Law
Journal 1615; J R Spencer, ‘“Rape Shields” and the Right to a Fair Trial’ [2001] Cambridge Law Journal 452;
J Temkin, ‘Sexual History Evidence—Beware the Backlash’ [2003] Criminal Law Review 217; L Ellison,
The Adversarial Process and the Vulnerable Witness (2001) 120–1; S Lees, Carnal Knowledge: Rape on Trial
(2002) xxvi–xxxiii; J Temkin, Rape and the Legal Process (2nd ed 2002) Ch 4.
265  [2001] UKHL 25, [2001] 2 WLR 1546 at [82].
266  [2001] UKHL 25, [2001] 2 WLR 1546 at [45].
Me a sures Designed to E a se the Burden on Witnesses 397

admissibility is whether the evidence (and questioning in relation to it) is nevertheless

so relevant to the issue of consent that to exclude it would endanger the fairness of the
trial under [A]‌r ticle 6 of the [C]onvention. If this test is satisfied the evidence should not
be excluded.267
This decision represents another valiant attempt on the part of the House of Lords
to find some part of English law—in this instance a legislative scheme designed to
restrict rather than to increase the amount of information available to a court—to be
Convention compliant. This has been achieved, as Dennis puts it, by ‘suppl[ying] the
residual inclusionary discretion that is so conspicuously lacking in the text of s 41’. 268
The use of section 3 is not, however, to be resorted to lightly, as the Court of Appeal
has cautioned:
In our judgment R v A is not authority for any wider reading of section 41 by force of
section 3 of the Human Rights Act in a case where sexual acts of the complainant with
men other than the appellant are sought to be adduced than is justified by the application
of conventional canons of construction. At the least it would take a very special case to
accommodate evidence of such acts in circumstances in which they would not be accom-
modated by an ordinary reading of the section.269
In an important decision, R v T, the Court of Appeal managed to avoid altogether the use
of section 3 of the Human Rights Act, by holding section 41 of the 1999 Act to be inap-
plicable in the first place:
It seems to this court that normally questions or evidence about false statements in
the past by a complainant about sexual assaults or such questions or evidence about a
failure to complain about the alleged assault which is the subject matter of the charge,
while complaining about other sexual assaults, are not ones ‘about’ any sexual behav-
iour of the complainant. They relate not to her sexual behaviour but to her statements
in the past or to her failure to complain. . . . It is, therefore, unnecessary to invoke s 3 of
the 1998 Act.270
Significantly, the Court of Appeal warned in a subsequent decision that T and other cases
are ‘not to be regarded as authorising the use of a trial as a vehicle for investigating the

267
  [2001] UKHL 25, [2001] 2 WLR 1546 at [46]. See also R v T [2004] EWCA Crim 1220, [2004] 2 Cr
App R 32.
268  I H Dennis, The Law of Evidence (5th ed 2013) 628. See the use of s 3 in R v R [2003] EWCA Crim 2754.
269  R v White [2004] EWCA Crim 946 at [35].
270  [2001] EWCA Crim 1877, [2002] 1 All ER 683 at [33], [37]. See also R v Davies [2004] EWCA

Crim 1389 and R v All-Hilly [2014] EWCA Crim 1614, [2014] 2 Cr App R 33 at [12], [14], [19], [21]: ‘It
is clear that the restrictions on questions about a complainant’s sexual history set out in s 41 of the
Youth Justice and Criminal Evidence Act 1999 do not apply to previous false complaints of sexual
assaults. Cross-examination is permitted since such complaints are not about any sexual behaviour of
the complainant within the meaning of s 42(1)(c) of the 1999 Act. However, before any such questions
are permissible, the defence must have a proper evidential basis for asserting that any such statement
was: (a) made; and (b) untrue. . . . the exercise for the judge is fact-sensitive and will not be assisted by
an examination of the facts of other cases. . . . it is an exercise of judgment rather than discretion, so that
it is for the judge to evaluate the matter on the basis of all the relevant material. The ultimate question
is whether the material is capable of leading to a conclusion that a previous complaint was false. . . . The
mere fact that a complaint is raised and is not pursued does not necessarily mean that a complaint is
false. Courts should be ready to deploy a degree of understanding of the position of those who have
made sexual allegations. Failure to pursue the complaint does not of necessity show that it is untrue.
A rather closer examination of the circumstances is required. . . . The fact that there is no instance which
begins to show falsity cannot be converted into evidence of falsity by the fact that complaints have been
raised more than once.’
398
Witnesses

truth or falsity of an earlier allegation merely because there is some material which could
be used to try and persuade a jury that it was in fact false’.271
A further illustration derives from R v P (R), in which the Court of Appeal observed that
it does not seem to us that to ask a person about whether someone has assisted her
in and about the obtaining of a lawful abortion can be said to be a question ‘about’
sexual behaviour. Self-evidently, it is not. The fact that an abortion cannot result
unless there has been antecedent sexual behaviour does not make the question about
the fact of the abortion a question ‘about’ any sexual behaviour. . . . We recognise that
a question about an abortion might in some cases be a way of asking about a per-
son’s sexual history, in which case it would be a question ‘about’ sexual behaviour, but
we do not see that a question asked of a formerly pregnant woman about events sur-
rounding a termination of pregnancy would in itself amount to a question about sexual
behaviour. 272
Being defence evidence, evidence found to be admissible under section 41 may not be
excluded in the exercise of discretion:
It is sometimes loosely suggested that the operation of section 41 involves the exercise of
judicial discretion. In reality, the trial judge is making a judgment whether to admit, or
refuse to admit evidence which is relevant, or asserted by the defence to be relevant. If
the evidence is not relevant, on elementary principles, it is not admissible. If it is relevant,
then subject to section 41(4) and assuming that the criteria for admitting the evidence
are established, in our judgment the court lacks any discretion to refuse to admit it, or
to limit relevant evidence which is properly admissible. In short, once the criteria for
admissibility are established, all the evidence relevant to the issues may be adduced. As
part of his control over the case, the judge is required to ensure that a complainant is not
unnecessarily humiliated or cross-examined with inappropriate aggression, or treated
otherwise than with proper courtesy. All that is elementary, but his obligation to see that
the complainant’s interests are protected throughout the trial process does not permit
him, by way of a general discretion, to prevent the proper deployment of evidence which
falls within the ambit permitted by the statute merely because . . . it comes in a stark,
uncompromising form.273
Given the failure of its predecessor to protect complainants adequately from inappro-
priate questioning in court, it is pleasing that the new rape shield legislation has, for all
its difficulties, been found to be Convention compliant. A structured statutory scheme
like that encapsulated in section 41, which prescribes specific situations in which sexual
history evidence that is relevant to consent will be admissible, certainly has more to
commend it than the highly discretionary approach that was encapsulated in section
2(2) of the Sexual Offences (Amendment) Act 1976. Under that approach, a success-
ful argument that sexual experience evidence was of relevance to the issue of consent,
rather than merely to credit, was treated by the courts as a good ground for allowing
the introduction of the evidence. There was little proper analysis by the courts of the
extent to which sexual experience evidence might have appropriately been regarded as
relevant to the issue of consent.274 It is easy for such ‘relevance’ to be simply assumed in

271  R v D [2009] EWCA Crim 2137 at [18].

272  [2013] EWCA Crim 2331, [2014] 1 WLR 3058 at [33].
273  R v F [2005] EWCA Crim 493, [2005] 1 WLR 2848 at [29].
274 See generally J Temkin, ‘Sexual History Evidence—The Ravishment of Section 2’ [1993]

Criminal Law Review 3. See also A J Turner, ‘The Law of Rape: The Previous Sexual Experience of the
Complainant’ (1998) 162 Justice of the Peace 396; A A S Zuckerman, The Principles of Criminal Evidence
Me a sures Designed to E a se the Burden on Witnesses 399

a situation where such an assumption may in fact be highly questionable, as McColgan

succinctly explains:
are women who are or have been sexually active more likely to have consented to sexual
activity they characterize as rape than women who are or have not been so active? Is it
more likely that a man with a reputation for generosity consented to the appropriation
of his possessions, in a case where he alleges theft by the appropriator, than a man who
has a reputation for meanness? Of course it is not. Neither his generosity nor her other
sexual activities render it more likely that they consented to the activity of which they
now complain. It is perhaps more likely, in fact, that the mean man and sexually conserva-
tive woman would repent their uncharacteristic behaviour and re-define it subsequently
to themselves and others than that the generous man and sexually active woman would
re-define behaviour which was not unusual for them.275
Relevance, the South African Law Reform Commission has explained, is ultimately
‘determined by each presiding officer’s common sense which is shaped by his or her own
personal experience and therefore has the potential to be discriminatory’.276 R v Mukadi
is highly instructive in this context. At issue was an alleged rape which took place at
the home of the defendant after he and the complainant had met in a supermarket on
Oxford Street where the defendant worked as a security guard. The defendant argued
that the complainant consented to sexual intercourse. The complainant’s alleged sexual
behaviour related to an incident which occurred a few hours before the alleged rape and
shortly before the complainant entered the supermarket. This involved the complainant
getting into a car on Oxford Street, being taken for a drive by the driver, who was a man
much older than she was, and exchanging telephone numbers with him. The trial judge
held in strong terms that evidence of the incident was inadmissible as being irrelevant to
consent: ‘it doesn’t, in my judgment, begin to touch on the issue of whether she was pre-
pared to permit sexual intercourse . . . It doesn’t begin to touch on that issue of consent,
that she was prepared to agree to some contact of this kind.’ The Court of Appeal, how-
ever, disagreed, holding that, on the assumption that it constituted evidence of ‘sexual
behaviour’, this evidence was admissible under section 41(3)(b): ‘if the jury had heard
evidence about the car incident it could have influenced them in a way adverse to her
in coming to a conclusion about her evidence and that of the appellant on the crucial
issue of consent’.277 This decision is controversial, for, as Birch puts it: ‘Even if the correct
reading of the “car” incident was that the complainant was open to the idea of engaging
in sexual activity with the driver, it by no means follows that she found M an equally
pleasing prospect.’278
In a case like Mukadi, therefore, treating the evidence as relevant to consent effec-
tively secures its admissibility. If the evidence were not deemed to be evidence of ‘sexual
behaviour’, then section 41 would not bite and the evidence would be admissible as being
relevant to consent. If it were evidence of ‘sexual behaviour’, then section 41 would bite,

(1989) 248 n 5. For an alternative view, see G Durston, ‘Cross-Examination of Rape Complainants:
Ongoing Tensions Between Conflicting Priorities in the Criminal Justice System’ (1998) 62 Journal of
Criminal Law 91.
275  A McColgan, ‘Common Law and the Relevance of Sexual History Evidence’ (1996) 16 Oxford Journal

of Legal Studies 275, 285. See also L Levanon, ‘Sexual History Evidence in Cases of Sexual Assault: A Critical
Re-Evaluation’ (2012) 62 University of Toronto Law Journal 609.
276  South African Law Reform Commission, Review of the Law of Evidence (Hearsay and Relevance):

Discussion Paper 113 (Project 126) [3.28].

277  [2003] EWCA Crim 3765 at [11].
278  D J Birch, Commentary on Mukadi at [2004] Crim LR 375.
400
Witnesses

but in consequence of the evidence being considered relevant to consent there is a gateway
under which it would be readily admissible.
It would thus be naïve to assume that the introduction of tighter legislation alone
would result in a substantial improvement in the treatment of complainants.279 What
is also required is a change in judicial attitudes, possibly through better judicial train-
ing, as well as a change in the attitudes of other lawyers involved in the system.280 ‘The
education of judges and barristers has to be improved so that it challenges stereotypical
assumptions and judgmental attitudes about rape. It should be bolstered with evaluation,
mentoring and monitoring.’281 Better witness preparation, too, may play a vital role.282
A possible option is for sexual history evidence to be heard in camera, with reporting
restrictions imposed.283 Ultimately, the treatment of rape complainants in court may be
viewed as being ‘rooted in the inadequate regulation of cross-examination not only in
rape cases but across the board and in the nature of cross-examination itself. The focus
of the current debate on rape trials must therefore be widened to include the conduct of
cross-examination in general in adversarial criminal proceedings.’284 Of interest in this
respect is the news from the Ministry of Justice in September 2014 that it will by March
2015 have ‘devise[d]‌a requirement that to be instructed in cases involving serious sexual
offences, publicly-funded advocates must have undertaken approved specialist training
on working with vulnerable . . . witnesses’.285
It is to be hoped that the practice of ‘reading down’ the sexual history provisions to
ensure Convention compliance will—in the face of some apparent judicial discontent
with the provisions286 —be kept within proper limits and not be permitted to dilute the
impact of the provisions.287 Rather than to leave courts to resort to the vague approach
of ‘reading down’ the legislative provisions to achieve admissibility of evidence of sexual
behaviour with the accused where this is thought necessary to ensure a fair trial, a more

279
  On the obstacles encountered by complainants of rape see generally L Ellison and V E Munro, ‘Better
the Devil You Know? “Real Rape” Stereotypes and the Relevance of a Previous Relationship in (Mock)
Juror Deliberations’ (2013) 17 International Journal of Evidence and Proof 299; L McCudden, ‘This Is Not
the First Time the Police Have Got It Terribly Wrong on Rape’, The Independent, 14 Sept 2012 (online); M
Marcello, ‘I Was Raped at University. Afterwards, the Police Pressured Me into Dropping Charges. Why?’,
The Independent, 1 Sept 2014 (online); Joint CPS and Police Action Plan on Rape (2014).
280
  ‘Speaking up for Justice’ [1998] 6 Archbold News 4, 5. There is evidence that judicial training may
have proved effective:  N Kibble, ‘Judicial Perspectives on the Operation of S 41 and the Relevance and
Admissibility of Prior Sexual History Evidence:  Four Scenarios:  Part  1’ [2005] Criminal Law Review
190, 205.
281  J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008) 210–11.
282  L Ellison, ‘Witness Preparation and the Prosecution of Rape’ (2007) 27 Legal Studies 171, 187:

‘In England and Wales, rape complainants enter court with the barest pre-trial preparation and are
consequently poorly placed to cope with the heavy demands made of witnesses within an adversarial
system.’
283  J Spencer, ‘Judges Must Control Cross-Examination and Reporting Must be Restricted’, The Times,

29 June 2011 (online).

284  L Ellison, ‘Cross-Examination in Rape Trials’ [1998] Criminal Law Review 605, 614. See also L Ellison,

‘The Mosaic Art? Cross-Examination and the Vulnerable Witness’ (2001) 21 Legal Studies 353; L Ellison,
‘Rape and the Adversarial Culture of the Courtroom’ in M Childs and L Ellison (eds), Feminist Perspectives
on Evidence (2000); T Henning, ‘Control of Cross-Examination—A Snowflake’s Chance in Hell?’ (2006) 30
Criminal Law Journal 133; L Ellison, The Adversarial Process and the Vulnerable Witness (2001).
285  Ministry of Justice, Our Commitment to Victims (2014) section 2 (bold font removed). See also

P Cooper, ‘Ticketing Talk Gets Serious’ [Nov 2014] Counsel 24.

286  See N Kibble, ‘Section 41 Youth Justice and Criminal Evidence Act 1999: Fundamentally Flawed or

Fair and Balanced?’ [2004] 8 Archbold News 6.

287  See also C McGlynn’s ‘judgment’ in A (No 2) in R Hunter, C McGlynn, and E Rackley (eds), Feminist

Judgments: From Theory to Practice (2010).

Me a sures Designed to E a se the Burden on Witnesses 401

honest approach may be to adopt the following recommendation made in an evaluation

of section 41 commissioned by the Home Office: ‘A new exception to the rule of exclusion
should be inserted into section 41, allowing for evidence of previous or subsequent sexual
behaviour with the accused. This exception could have a time limitation.’288 The results of
one study of the effect of section 41 have encouragingly suggested ‘that judges are gener-
ally far more thoughtful in relation to sexual history evidence than is supposed, and that
they take great care when making decisions to allow questioning or evidence and how
much to allow’.289 This must, however, be contrasted with other research findings reveal-
ing that ‘interviews with judges and barristers disclosed a degree of ignorance of both law
and procedure, some judicial interpretations of section 41 which were manifestly wrong
and in conflict with its intentions, and a general willingness to give the widest possi-
ble interpretation to R v A. . . . Negative attitudes towards this important legislation have
served seriously to undermine it.’290

4.3  Child Defendants and Other Defendants Requiring

Special Assistance
Continuing concern has been expressed about the treatment of child defendants and
other defendants requiring special assistance.291 The provisions on live links in the
Criminal Justice Act 2003, and the provisions on special measures in the Youth Justice
and Criminal Evidence Act 1999, do not apply to defendants. In R (S) v Waltham Forest
Youth Court292 it was confirmed that a special measures direction could not be given in
respect of a 13-year-old defendant even if she was intending to give evidence against her
co-defendants. This state of affairs was not thought to constitute a violation of the defend-
ant’s right to a fair trial under Article 6.293 On the other hand, in T v UK,294 the European
Court of Human Rights found the trial of two boys for the murder of the toddler James

288
  L Kelly, J Temkin, and S Griffiths, Section 41:  An Evaluation of New Legislation Limiting Sexual
History Evidence in Rape Trials (Home Office Online Report 20/06) (2006) viii.
289
  N Kibble, ‘Section 41 Youth Justice and Criminal Evidence Act 1999: Fundamentally Flawed or Fair
and Balanced?’ [2004] 8 Archbold News 6, 9. See also N Kibble, ‘Judicial Perspectives on the Operation of
S 41 and the Relevance and Admissibility of Prior Sexual History Evidence: Four Scenarios: Part 1’ [2005]
Criminal Law Review 190, 204: ‘The judges’ responses suggest that far from allowing questioning and evi-
dence in relation to sexual history to be admitted as a matter of course, many judges approach the question
of relevance and admissibility thoughtfully and with an awareness of the dangers of admitting irrelevant
evidence.’
290  J Temkin and B Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (2008) 151.
291  See, eg, P Cooper and D Wurtzel, ‘A Day Late and a Dollar Short:  In Search of an Intermediary

Scheme for Vulnerable Defendants in England and Wales’ [2013] Criminal Law Review 4; R Epstein,
‘Vulnerable Defendants in the Criminal Courts’ (2010) 174 Criminal Law and Justice Weekly 152; E Frith,
‘Court System Must Address Vulnerable Defendants’ Needs’ (2012) 156(38) Solicitors’ Journal 14; F Gerry,
‘The Old Bailey is No Place to Try Two Young Boys for Rape’, The Times, 19 Aug 2010 (online); J McEwan,
‘Vulnerable Defendants and the Fairness of Trials’ [2013] Criminal Law Review 100; A Taylor, ‘From
Fitness to Plead to Effective Participation’ (2014) 178 Criminal Law and Justice Weekly 559; R Verkaik,
‘Adult Court Trials Harm Children, Says QC’, The Independent, 3 Sept 2007 (online); D Wurtzel and P
Cooper, ‘Making It Meaningful’ [Aug 2013] Counsel 23; J Jacobson, Vulnerable Defendants in the Criminal
Courts: A Review of Provision for Adults and Children (2009); Law Commission, Unfitness to Plead: An
Issues Paper (2014).
292  [2004] EWHC 715 (Admin), [2004] 2 Cr App R 21.
293 In R (D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at [63], Baroness Hale of

Richmond reserved her position on whether Waltham Forest was correctly decided.
294  (1999) 30 EHRR 121. See generally A A Gillespie, ‘Practice Direction on Child Defendants and the

Case of T v UK’ (2000) 150 New Law Journal 320; E Henderson, ‘The European Convention and Child
Defendants’ [2000] Cambridge Law Journal 235.
402
Witnesses

Bulger to have breached Article 6. Similarly, in SC v UK, the European Court of Human
Rights found a breach of Article 6(1) in circumstances where
the applicant seems to have had little comprehension of the role of the jury in the proceed-
ings or of the importance of making a good impression on them. Even more strikingly, he
does not seem to have grasped the fact that he risked a custodial sentence and, even once
sentence had been passed and he had been taken down to the holding cells, he appeared
confused and expected to be able to go home with his foster father.295
The Court observed that,
when the decision is taken to deal with a child, such as the applicant, who risks not being
able to participate effectively because of his young age and limited intellectual capacity,
by way of criminal proceedings rather than some other form of disposal directed primar-
ily at determining the child’s best interests and those of the community, it is essential
that he be tried in a specialist tribunal which is able to give full consideration to and
make proper allowance for the handicaps under which he labours, and adapt its procedure
accordingly.296
Notably, too, section 33A has been inserted into the Youth Justice and Criminal Evidence
Act 1999 by the Police and Justice Act 2006. Section 33A provides that a court may in
certain circumstances give a ‘live link direction’ (‘a direction that any oral evidence to
be given before the court by the accused is to be given through a live link’).297 Where the
accused is under 18 years old at the time of the application, a live link direction may be
given if:
1. ‘it is in the interests of justice for the accused to give evidence through a live
link’;298 and
2. ‘his ability to participate effectively in the proceedings as a witness giving oral
evidence in court is compromised by his level of intellectual ability or social
functioning’;299 and
3. ‘use of a live link would enable him to participate more effectively in the pro-
ceedings as a witness (whether by improving the quality of his evidence or
otherwise)’. 300
Where the accused is aged 18 or over, a live link direction may be given if:
1. ‘it is in the interests of justice for the accused to give evidence through a live
link’;301 and
2. ‘he suffers from a mental disorder (within the meaning of the Mental Health
Act 1983)  or otherwise has a significant impairment of intelligence and social
function’;302 and
3. ‘he is for that reason unable to participate effectively in the proceedings as a witness
giving oral evidence in court’;303 and
4. ‘use of a live link would enable him to participate more effectively in the proceedings
as a witness (whether by improving the quality of his evidence or otherwise)’.304

295  (2004) 40 EHRR 10 at [33].

296 (2004) 40 EHRR 10 at [35]. See generally P Tain, ‘Children in the Dock’ (2004) 148 Solicitors’
Journal 841.
297  S 33A(3) (italics added). 298  S 33A(2)(b). 299  S 33A(4)(a). 300  S 33A(4)(b).
301  S 33A(2)(b). 302  S 33A(5)(a). 303  S 33A(5)(b). 304  S 33A(5)(c).
Me a sures Designed to E a se the Burden on Witnesses 403

The relevant Practice Direction dealing with the treatment of vulnerable defendants
now provides as follows:
3G.7  Subject to the need for appropriate security arrangements, the proceedings should,
if practicable, be held in a courtroom in which all the participants are on the same or
almost the same level.
3G.8  Subject again to the need for appropriate security arrangements, a vulnerable
defendant, especially if he is young, should normally, if he wishes, be free to sit with mem-
bers of his family or others in a like relationship, and with some other suitable supporting
adult such as a social worker, and in a place which permits easy, informal communication
with his legal representatives. The court should ensure that a suitable supporting adult is
available throughout the course of the proceedings.
3G.9  It is essential that at the beginning of the proceedings, the court should ensure
that what is to take place has been explained to a vulnerable defendant in terms he or she
can understand and, at trial in the Crown Court, it should ensure in particular that the
role of the jury has been explained. It should remind those representing the vulnerable
defendant and the supporting adult of their responsibility to explain each step as it takes
place and, at trial, explain the possible consequences of a guilty verdict and credit for a
guilty plea. . . . Throughout the trial the court should continue to ensure, by any appropri-
ate means, that the defendant understands what is happening and what has been said by
those on the bench, the advocates and witnesses.
3G.10 A  trial should be conducted according to a timetable which takes full
account of a vulnerable defendant’s ability to concentrate. Frequent and regular
breaks will often be appropriate. The court should ensure, so far as practicable, that
the whole trial is conducted in clear language that the defendant can understand and
that evidence in chief and cross-examination are conducted using questions that are
short and clear. . . .
3G.11  A vulnerable defendant who wishes to give evidence by live link, in accordance
with section 33A of the Youth Justice and Criminal Evidence Act 1999, may apply for a
direction to that effect . . . The direction will need to deal with the practical arrangements
to be made, including the identity of the person or persons who will accompany him
or her.
3G.12  In the Crown Court, the judge should consider whether robes and wigs should
be worn, and should take account of the wishes of both a vulnerable defendant and any
vulnerable witness. It is generally desirable that those responsible for the security of a
vulnerable defendant who is in custody, especially if he or she is young, should not be in
uniform, and that there should be no recognisable police presence in the courtroom save
for good reason.
3G.13  The court should be prepared to restrict attendance by members of the pub-
lic in the courtroom to a small number, perhaps limited to those with an immediate
and direct interest in the outcome. The court should rule on any challenged claim
to attend. . . . The court may restrict the number of reporters attending in the court-
room to such number as is judged practicable and desirable. In ruling on any chal-
lenged claim to attend in the courtroom for the purpose of reporting, the court should
be mindful of the public’s general right to be informed about the administration of
justice.
3G.14  Where it has been decided to limit access to the courtroom, whether by report-
ers or generally, arrangements should be made for the proceedings to be relayed, audibly
and if possible visually, to another room in the same court complex to which the media
and the public have access if it appears that there will be a need for such additional
404
Witnesses

facilities. Those making use of such a facility should be reminded that it is to be treated
as an extension of the courtroom and that they are required to conduct themselves
accordingly.
Section 33A of the Youth Justice and Criminal Evidence Act 1999 stands alongside a com-
mon law power the existence of which the Court of Appeal confirmed in R v Ukpabio in
the following terms:
there may well be circumstances in which it may be appropriate that a defendant on his
own application should not be present in court for all or part of a trial, provided that his
participation in the trial can be adequately secured by, if the relevant equipment is avail-
able, his being in touch by video link or in some other way. In other words, there may be
circumstances, exceptionally, where that might be a sensible method of ensuring partici-
pation for a defendant who would otherwise not be able to participate properly in all or
some of the trial process.305
Notably, too, in R v Cox, the Court of Appeal was prepared to
assume that if necessary an intermediary should be made available for a defendant. . . .
We immediately acknowledge the valuable contribution made to the administration
of justice by the use of intermediaries in appropriate cases. We recognise that there are
occasions when the use of an intermediary would improve the trial process. That, how-
ever, is far from saying that whenever the process would be improved by the availability
of an intermediary, it is mandatory for an intermediary to be made available. It can,
after all, sometimes be overlooked that as part of their general responsibilities judges are
expected to deal with specific communication problems faced by any defendant . . . as
part and parcel of their ordinary control of the judicial process. When necessary, the
processes have to be adapted to ensure that a particular individual is not disadvantaged
as a result of personal difficulties, whatever form they may take. In short, the overall
responsibility of the trial judge for the fairness of the trial has not been altered because
of the increased availability of intermediaries . . .
In the context of a defendant with communication problems, when every sensible step
taken to identify an available intermediary has been unsuccessful, the next stage is not
for the proceedings to be stayed, . . . but for the judge to make an informed assessment of
whether the absence of an intermediary would make the proposed trial an unfair trial.
It would, in fact, be a most unusual case for a defendant who is fit to plead to be found to
be so disadvantaged by his condition that a properly brought prosecution would have to
be stayed. That would be an unjust outcome where, on the face of the evidence, a genuine
complaint has properly been brought against the defendant. If the question were to arise,
this court would have to re-examine whether the principles relating to fitness to plead may
require reconsideration.306
The Law Commission has noted the inadequacy of ‘reliance on the trial judge’s inherent
discretion to grant measures to ensure effective participation. . . . difficulties concerning
the availability and resourcing of special measures for vulnerable defendants mean that
the operation of that discretion can have inconsistent results, and there are delays and
difficulties in obtaining funding.’307

305  [2007] EWCA Crim 2108, [2008] 1 WLR 728 at [17]. See generally S Burns, ‘Trial by Video’ (2007) 151

Solicitors’ Journal 1391.
306  [2012] EWCA Crim 549, [2012] 2 Cr App R 6, (2012) 176 JP 549 at [28]–[30].
307  Law Commission, Unfitness to Plead: An Issues Paper (2014) [3.15].
Me a sures Designed to E a se the Burden on Witnesses 405

4.4  Witness Anonymity

The various methods of witness protection in criminal proceedings examined thus far
in this chapter assume that the identity of the witness in question is revealed. May it
be possible, however, for a witness to give evidence anonymously? In R v Davis308 three
witnesses in a murder trial, being the only witnesses who had identified the defendant
as the perpetrator, were permitted to give evidence anonymously. The House of Lords
found a violation of Article 6(3)(d) and consequently of the general fair trial guarantee
of Article 6. In the words of Lord Mance:
I do not believe that the Strasbourg court would accept that the use of anonymous
evidence in the present case satisfied the requirements of [A]‌r ticle 6. Not only was the
evidence on any view the sole or decisive basis on which alone the defendant could have
been convicted, but effective cross-examination in the present case depended upon
investigating the potential motives for the three witnesses giving what the defence
maintained was a lying and presumably conspiratorial account. Cross-examination
was hampered by the witnesses’ anonymity, by the mechanical distortion of their
voices and by their giving evidence from behind screens, so that the appellant (and,
since he was not prepared to put himself in a position where he had information that
his client did not, his counsel) could not see the witnesses. Assuming that the sole or
decisive nature of the evidence is not itself fatal, it is on any view an important fac-
tor which would require to be very clearly counter-balanced by other factors. Here
there are none. The other factors are here very prejudicial in their impact on effective
cross-examination. 309
Parliament reacted swiftly to this decision, with ‘emergency legislation’ in the form of the
Criminal Evidence (Witness Anonymity) Act 2008 coming into force within weeks. The
provisions of this Act were then largely ‘re-enacted’ in Chapter 2 of Part 3 of the Coroners
and Justice Act 2009.310
A witness anonymity order is defined in the 2009 Act as ‘an order made by a court
that requires such specified measures to be taken in relation to a witness in criminal
proceedings as the court considers appropriate to ensure that the identity of the witness
is not disclosed in or in connection with the proceedings’.311 Measures that may be taken
include:312
• withholding the witness’s name and other identifying details;
• the use of a pseudonym;
• not asking the witness ‘questions of any specified description that might lead to the
identification of the witness’;
• screening the witness (but not to the extent that the witness cannot be seen by the
judge or any other members of the court; or by the jury);
• subjecting the witness’s voice to modulation (but not to the extent that the witness’s
natural voice cannot be heard by the judge or any other members of the court; or by
the jury).

308 [2008] UKHL 36, [2008] 1 AC 1128. 309  [2008] UKHL 36, [2008] 1 AC 1128 at [96].
310 See generally J Doak and R Huxley-Binns, ‘Anonymous Witnesses in England and Wales: Charting a
Course from Strasbourg?’ (2009) 73 Journal of Criminal Law 508; D Ormerod, A L-T Choo, and R L Easter,
‘Coroners and Justice Act 2009: (4) The “Witness Anonymity” and “Investigation Anonymity” Provisions’
[2010] Criminal Law Review 368.
311 S 86(1). 312 S 86(2).
406
Witnesses

Three conditions must be satisfied before an order can be made:

1. The first condition ‘is that the proposed order is necessary (a) in order to protect the
safety of the witness or another person or to prevent any serious damage to prop-
erty [having regard (in particular) to any reasonable fear on the part of the witness
that, if the witness were to be identified, the witness or another person would suffer
death or injury, or that there would be serious damage to property], or (b) in order
to prevent real harm to the public interest (whether affecting the carrying on of any
activities in the public interest or the safety of a person involved in carrying on such
activities, or otherwise)’.313
2. The second condition ‘is that, having regard to all the circumstances, the effect of
the proposed order would be consistent with the defendant receiving a fair trial’. 314
3. The third condition ‘is that the importance of the witness’s testimony is such that
in the interests of justice the witness ought to testify and (a) the witness would not
testify if the proposed order were not made, or (b)  there would be real harm to
the public interest if the witness were to testify without the proposed order being
made’.315
In determining whether the three conditions are satisfied, the court must have regard to
such matters as it considers relevant,316 including the following:
(a) the general right of a defendant in criminal proceedings to know the identity of a
witness in the proceedings;
(b) the extent to which the credibility of the witness concerned would be a relevant
factor when the weight of his or her evidence comes to be assessed;
(c) whether evidence given by the witness might be the sole or decisive evidence impli-
cating the defendant;
(d) whether the witness’s evidence could be properly tested (whether on grounds of
credibility or otherwise) without his or her identity being disclosed;
(e) whether there is any reason to believe that the witness—
(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the circumstances of the case,
having regard (in particular) to any previous convictions of the witness and to any
relationship between the witness and the defendant or any associates of the defendant;
(f) whether it would be reasonably practicable to protect the witness by any means other
than by making a witness anonymity order specifying the measures that are under
consideration by the court.317
‘The judge must give the jury such warning as the judge considers appropriate to ensure
that the fact that [a witness anonymity] order was made in relation to the witness does not
prejudice the defendant.’318
The operation of the witness anonymity provisions just outlined, and the courts’ deter-
mination of their human rights compatibility, will be watched with interest. It is notable
that the consideration of whether the ‘anonymous’ evidence to be given might be the
sole or decisive evidence implicating the defendant is to be regarded merely as one of

313  S 88(3), read in conjunction with s 88(6). 314 S 88(4). 315 S 88(5).

316  S 89(1)(b). 317 S 89(2). 318 S 90(2).
Summary and Conclusion 407

a number of matters to be taken into account. As seen in the first paragraph of this section,
the House of Lords in R v Davis appeared to recognize a presumption that the use of
‘sole or decisive’ anonymous prosecution evidence would breach the right to a fair trial.
It would require very clear counterbalancing factors to dislodge this presumption.
Parliament’s view would appear to be that the existence of such counterbalancing factors
will be ensured by the various protections built into these statutory provisions. When
called upon to apply the new statutory provisions, the Court of Appeal has displayed little
inclination to hold that the relevant criteria for the making of an anonymity order were
not satisfied in the case at hand. For example, in the leading case of R v Mayers,319 the
Court considered in only one of the four conjoined appeals that the trial judge had had no
power to make an anonymity order. This was regarded as a clear case in which the making
of such an order had been manifestly unfair:
Notwithstanding the absence of full and comprehensive inquiries needed to set against
the disadvantages created for the defendant by the anonymity order, [the witness’s] evi-
dence assumed decisive importance in the case against the defendant. Without it a con-
viction would have been highly improbable. We do not have sufficient confidence that
everything relating to [the witness’s] credibility, motivation and integrity was revealed. In
the result, in our judgment, the trial process was unfair.320

5  Summary and Conclusion

The modern law of evidence has moved towards adoption of the principle that all poten-
tial witnesses should as far as possible be regarded as competent, and therefore compel-
lable, to testify. A notable exception is provided by section 80 of the Police and Criminal
Evidence Act 1984 for a spouse or civil partner of the defendant testifying on behalf
of the prosecution or a co-defendant, such a spouse or civil partner being compel­
lable only in specified circumstances. Whether section 80 is justifiable may be debated.
Defendants are not compellable to testify on their own behalf, but adverse inferences
may be drawn under section 35 of the Criminal Justice and Public Order Act 1994 from
their failure to do so.
Considerable reliance is placed on the administration of ‘caution’ warnings to the jury
about allegedly unreliable prosecution evidence. In the light of uncertainty about the
effectiveness of such warnings, and the fact that trial judges have considerable discretion
in determining whether to administer a warning, this reliance may be misplaced.
A number of mechanisms to assist vulnerable or intimidated witnesses to testify
are available. We have examined, in particular, the provisions of the Youth Justice and
Criminal Evidence Act 1999 on special measures directions and sexual history evidence,
and the provisions of the Coroners and Justice Act 2009 that allow the making of wit-
ness anonymity orders. Cases such as R (D) v Camberwell Green Youth Court and R v
A (No 2) demonstrate the willingness of the appellate courts to find such provisions to
be Convention compliant, although the importance of keeping within proper limits the
implications of what was said in A (No 2) about ‘reading down’ the sexual history provi-
sions cannot be overstated.

319  [2008] EWCA Crim 2989, [2009] 1 WLR 1915. See generally R Bagshaw, ‘Anonymous Evidence: R v

Mayers’ (2009) 13 International Journal of Evidence and Proof 137.

320  [2008] EWCA Crim 2989, [2009] 1 WLR 1915 at [52]. See also, eg, R v Powar [2009] EWCA Crim 594,

[2009] 2 Cr App R 8.
408
Witnesses

Despite some progress in recent years, statutory protections for vulnerable defendants
do not match those available to vulnerable prosecution witnesses.

Further Reading
D Birch, ‘Rethinking Sexual History Evidence: Proposals for Fairer Trials’ [2002] Criminal
Law Review 531
D Birch, ‘Untangling Sexual History Evidence:  A  Rejoinder to Professor Temkin’ [2003]
Criminal Law Review 370
J Brabyn, ‘A Criminal Defendant’s Spouse as a Prosecution Witness’ [2011] Criminal Law
Review 613
J Hartshorne, ‘Corroboration and Care Warnings after Makanjuola’ (1998) 2 International
Journal of Evidence and Proof 1
L Kelly, J Temkin, and S Griffiths, Section 41: An Evaluation of New Legislation Limiting
Sexual History Evidence in Rape Trials (Home Office Online Report 20/06) (2006)
N Kibble, ‘Judicial Discretion and the Admissibility of Prior Sexual History Evidence under
Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to your
Guns Means Shooting yourself in the Foot: Part 2’ [2005] Criminal Law Review 263
N Kibble, ‘Judicial Perspectives on the Operation of S 41 and the Relevance and Admissibility
of Prior Sexual History Evidence: Four Scenarios: Part 1’ [2005] Criminal Law Review 190
L Levanon, ‘Sexual History Evidence in Cases of Sexual Assault: A Critical Re-Evaluation’
(2012) 62 University of Toronto Law Journal 609
D Ormerod, A L-T Choo, and R L Easter, ‘Coroners and Justice Act 2009: (4) The “Witness
Anonymity” and “Investigation Anonymity” Provisions’ [2010] Criminal Law Review 368
A Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence:  An Unfortunate
Approach to S 35(1)(b) of the Criminal Justice and Public Order Act 1994’ [2011] Criminal
Law Review 690
M Redmayne, ‘Myths, Relationships and Coincidences: The New Problems of Sexual History’
(2003) 7 International Journal of Evidence and Proof 75
J R Spencer and M E Lamb (eds), Children and Cross-Examination:  Time to Change the
Rules? (2012)
J Temkin, ‘Sexual History Evidence—Beware the Backlash’ [2003] Criminal Law Review 217
14
Proof without Evidence

To require evidence to be called to prove every single matter requiring proof in a trial
would serve no useful purpose and lead to the unnecessary prolongation of trials. On
occasion, therefore, a matter may be regarded as proved even though no evidence has
been adduced to prove it in the normal way.1 In this chapter, we examine three devices
used in the law of evidence to achieve this.

1  Formal Admissions
A formal admission by a party of the existence of a particular fact absolves the party who
would otherwise bear the burden of proving that fact of the responsibility of doing so.
Formal admissions are to be distinguished from informal admissions, which in civil cases
are typically simply called ‘admissions’ and in criminal cases confessions (discussed in
Chapter 4).2 Whereas an informal admission constitutes evidence which is adduced to
prove a particular fact, a formal admission abrogates the need for evidence to be adduced.

1.1  Criminal Cases
The position in criminal cases is governed by section 10 of the Criminal Justice Act 1967:
(1) Subject to the provisions of this section, any fact of which oral evidence may be given
in any criminal proceedings may be admitted for the purpose of those proceedings
by or on behalf of the prosecutor or defendant, and the admission by any party of
any such fact under this section shall as against that party be conclusive evidence in
those proceedings of the fact admitted.
(2) An admission under this section—
(a) may be made before or at the proceedings;
(b) if made otherwise than in court, shall be in writing;
(c) if made in writing by an individual, shall purport to be signed by the person
making it and, if so made by a body corporate, shall purport to be signed by a

1  See generally D Hamer, ‘Presumptions, Standards and Burdens: Managing the Cost of Error’ (2014)

13 Law, Probability and Risk 221.

2 See DPP v Mooney [1997] RTR 434, in which it was made clear that proof of disqualification on a

charge of driving while disqualified could be provided by an informal admission by the defendant that he
was disqualified; the admission did not have to be a formal admission under s 10 of the Criminal Justice
Act 1967.
410
Proof without E vidence

director or manager, or the secretary or clerk, or some other similar officer of the
body corporate;
(d) if made on behalf of a defendant who is an individual, shall be made by his coun-
sel or solicitor;
(e) if made at any stage before the trial by a defendant who is an individual, must be
approved by his counsel or solicitor (whether at the time it was made or subse-
quently) before or at the proceedings in question.
(3) An admission under this section for the purpose of proceedings relating to any mat-
ter shall be treated as an admission for the purpose of any subsequent criminal pro-
ceedings relating to that matter (including any appeal or retrial).
(4) An admission under this section may with the leave of the court be withdrawn in the
proceedings for the purpose of which it is made or any subsequent criminal proceed-
ings relating to the same matter.

1.2  Civil Cases
For civil cases, Part 14.1(1) of the Civil Procedure Rules provides: ‘A party may admit
the truth of the whole or any part of another party’s case.’ Part 14.1(2) continues: ‘The
party may do this by giving notice in writing (such as in a statement of case or by letter).’
Provision is also made in Part 14.1A(1) for a person, ‘by giving notice in writing, [to]
admit the truth of the whole or any part of another party’s case before commencement of
proceedings (a “pre-action admission”)’.3

2  Judicial Notice
Judicial notice refers to facts, which a judge can be called upon to receive and to act upon,
either from his general knowledge of them, or from inquiries to be made by himself for his
own information from sources to which it is proper for him to refer.4
As this statement implies, judicial notice may be taken of facts either pursuant to the
judge’s general knowledge of them, or pursuant to proper inquiries made by him or her.
It seems accepted that the concept of judicial notice is ‘in large measure an application of
common sense’.5

2.1  Judicial Notice Pursuant to General Knowledge

It is well established that courts may take judicial notice of various matters when they
are so notorious, or clearly established, or susceptible of demonstration by reference to
a readily obtainable and authoritative source, that evidence of their existence is unnec-
essary . . . Generally, matters directed by statute, or which have been so notified by the

3  See generally M Ahmed, ‘Pre-Action Admissions’, Law Society’s Gazette, 31 May 2011 (online); G Exall,

‘Civil Litigation Brief’ (2007) 151 Solicitors’ Journal 115.

4  Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212. Cf the position

under the Uniform Evidence Acts in Australia: Gattellaro v Westpac Banking Corporation [2004] HCA 6; R
I Barrett, ‘Judicial Notice’ (2004) 78 Australian Law Journal 445.
5  DPP v Hynde (1997) 161 JP 671, 678, approving J A Andrews and M Hirst, Andrews and Hirst on Criminal

Evidence (2nd ed 1992) [5-02]. For discussion by a US commentator, see R Slovenko, ‘The Superfluous Rule
of Evidence on Judicial Notice’ (1998) 2 International Journal of Evidence and Proof 51.
Judicial Notice 411

well established practice or precedents of the court, must be recognised by the judges;
but beyond this, they have a wide discretion and may notice much which they cannot be
required to notice. The matters noticeable may include facts which are in issue or relevant
to the issue; and the notice is in some cases conclusive and in others merely prima facie
and rebuttable . . .6
For example, judicial notice has been (or may be) taken of the fact that a fortnight is
too short a period for human gestation, so that a ‘husband, who had no access [to his
wife] till within a fortnight of his wife’s delivery, could not be the actual father of the
child’;7 of the fact ‘that cats belong to a genus or class of animals that are ordinarily
kept for domestic purposes’;8 of the fact that people other than the addressee will read
and have in fact read what is written on a postcard;9 of the fact that ‘a boy employed
to ride a bicycle through London traffic runs the risk of injury by collision with other
vehicles’;10 and of the fact that a butterfly knife is an article made for use in causing
injury to a person.11
It is clear that in certain circumstances judicial notice may be taken of matters of local
knowledge. The Court of Appeal has held that
a judge may rely on his own local knowledge where he does so ‘properly and within rea-
sonable limits.’ This judicial function appears to be acceptable where ‘the type of knowl-
edge is of a quite general character and is not liable to be varied by specific individual
characteristics of the individual case.’ This test allows a judge to use what might be called
‘special (or local) general knowledge’.12
On this basis it was held that a judge had been ‘entitled to take judicial notice of his “spe-
cial (or local) knowledge” of how [a]‌council had conducted themselves in relation to
undertakings given to the court in similar cases’.13
The position of justices in magistrates’ courts is governed by principles similar to those
applicable to trials on indictment and County Court trials.14 Indeed, the very essence
of summary justice may suggest that it would be inappropriate to prohibit the use of
‘actual local knowledge gained by justices as ordinary citizens of the place in which they
live and in which they from time to time dispense justice’.15 ‘It must be recognised in
cases . . . which involve local knowledge that justices simply cannot turn out of their minds
knowledge which they acquire locally nor is it desirable that they should.’16 But it has
been emphasized that, although ‘Justices are fully entitled to take into account their own
knowledge in relation to matters which are well known in the locality’,17 they must be

6  Mullen v Hackney LBC [1997] 1 WLR 1103, 1105.

7  R v Luffe (1807) 8 East 193, 202; 103 ER 316, 319. 8  Nye v Niblett [1918] 1 KB 23, 25.
9  Huth v Huth [1915] 3 KB 32. 10  Dennis v A J White and Company [1917] AC 479, 491.
11  DPP v Hynde (1997) 161 JP 671. ‘This decision is to be welcomed, as judicial notice of the dangerous-

ness of such a weapon can only result in the acceleration of cases through the courts and in greater consist-
ency in the prosecution of offences related to the use or possession of butterfly knives’: S Doran, J Jackson,
and K Quinn, ‘Evidence’ [1998] All ER Annual Review 225, 236.
12  Mullen v Hackney LBC [1997] 1 WLR 1103, 1105.
13  Mullen v Hackney LBC [1997] 1 WLR 1103, 1105. For criticism, see C Allen, ‘Judicial Notice

Extended:  Mullen v Hackney London Borough Council’ (1998) 2 International Journal of Evidence and
Proof 37.
14  Ingram v Percival [1969] 1 QB 548; Wetherall v Harrison [1976] QB 773; Norbrook Laboratories (GB)

Ltd v Health and Safety Executive, The Times, 23 Feb 1998.

15  Bowman v DPP [1991] RTR 263, 269. 16  Bowman v DPP [1991] RTR 263, 270.
17  Norbrook Laboratories (GB) Ltd v Health and Safety Executive, The Times, 23 Feb 1998; transcript from

Smith Bernal.
412
Proof without E vidence

‘extremely circumspect’ in doing so, and ‘it is always wise . . . to make the fact that local
knowledge is going to be used known to the defence and the prosecution so as to give
those representing those parties the opportunity of commenting upon the knowledge
which the justice or justices claim to have and which they aim to use for the purpose of
aiding them in reaching a determination’.18
Thus it has been held, for example, that justices were entitled to use their local knowl-
edge about whether particular water was tidal,19 and ‘to use their own local knowledge of
what ha[d]‌been going on as to the use of a particular piece of land’.20 In Paul v DPP the
appellant was convicted of kerb-crawling on an information alleging that he solicited a
woman for the purpose of prostitution from a motor vehicle, in such a manner or in such
circumstances as to be likely to cause a nuisance to other persons in the neighbourhood.
The Divisional Court held that
the justices, who did not have any evidence that anyone had actually been caused nui-
sance, took into account their local knowledge. In particular they took into account the
fact that the area of Studley Road and Biscot Road is an area often frequented by prosti-
tutes and there is a constant procession of cars driving around the area at night. Secondly,
and perhaps most importantly of all, they took into account that it was a heavily populated
residential area.
Both the matters to which I have just referred are matters which justices, in my view, are
entitled to take into account in considering an offence of this sort and deciding whether
or not the circumstances are such as likely to cause a nuisance. They are matters within
their local knowledge; and they are matters which make[] it peculiarly appropriate that
offences of this sort should be determined by magistrates who have that local knowledge
for the very reason that enables them to take account of their knowledge of the area[,]‌the
people who are likely to be about and the people who are likely to be affected by what takes
place.21
In appropriate circumstances justices may also take notice of any relevant specialized or
technical knowledge that they may possess. In R v Field, ex p White the justices consid-
ered ‘that it was a matter of common knowledge that cocoa, as an article of commerce,
must necessarily contain a large proportion of other ingredients’. The justices had served
in the Navy where cocoa with very large percentages of foreign matter was a regular arti-
cle of food. Wills J held:
I do not say that the Justices pursued an altogether prudent course; and perhaps if the
occasion arose again they would be wiser to hear evidence, and keep themselves techni-
cally right. However, they decided the case as they did upon their own knowledge; and
in the nature of things, no one in determining a case of this kind can discard his own
particular knowledge of a subject of this kind.22
More recently, in Wetherall v Harrison, the Divisional Court held23 that it had been proper
to have regard to the views of one of the justices on the bench, a practising registered
medical practitioner, on whether a fit had been simulated or genuine.
If the justice is a specialist, be he a doctor, or an engineer or an accountant, or what you
will, it is not possible for him to approach the decision in the case as though he had not
got that training, and indeed I think it would be a very bad thing if he had to. In a sense,
the bench of justices are like a jury, they are a cross-section of people, and one of the

18  Bowman v DPP [1991] RTR 263, 269. 19  Ingram v Percival [1969] 1 QB 548.
20  Bowman v DPP [1991] RTR 263, 269. 21  (1989) 90 Cr App R 173, 176–7.
22  (1895) 64 LJMC 158, 158–60. 23  [1976] QB 773, 777–8.
Judicial Notice 413

advantages which they have is that they bring a lot of varied experience into the court
room and use it.
Special knowledge may only be drawn upon, however, to interpret evidence which has
been heard; it may not be used to contradict such evidence. Additionally, the justice with
the relevant knowledge ‘ought really to . . . wait[] until asked to make a contribution on his
specialist subject’, and ‘should not press his views unduly on the rest of the bench’.
In Carter v Eastbourne Borough Council it was held that the justices had not been
entitled to rely on their knowledge ‘from our own experience in our own gardens and
woodlands that the trees in the photographs must have been over four years of age’. 24

2.2  Judicial Notice Pursuant to Proper Inquiry

2.2.1  Facts of a Political or Diplomatic Nature
A court may take judicial notice, after having recourse to any proper source of informa-
tion, of facts of a political or diplomatic nature. Thus a court is permitted, for example,
‘to take judicial notice of the sovereignty of a State, and for that purpose (in any case of
uncertainty) to seek information from a Secretary of State; and when information is so
obtained the Court does not permit it to be questioned by the parties’;25 or to take judi-
cial notice of the status of a person claiming diplomatic privilege, treating as conclusive a
statement made to the court by the Attorney-General on the instructions of the Foreign
Office.26 In 1946 the Court of Appeal held that ‘there can, on the authorities, be no ques-
tion but that the certificate of the Foreign Secretary given on behalf of the Crown as to
the existence of a state of war involving His Majesty is conclusive and binding on this
court, and this is so whether questions of fact or law are involved therein’.27

2.2.2  Historical Facts
Judicial notice may be taken of facts gleaned from historical works dealing with ancient
facts of a public nature.28

2.2.3  Customs
Judicial notice may be taken, after appropriate inquiry, of the customs and practices of
particular organizations and professions. Thus judicial notice has been taken of such
matters as the practices of the accountancy profession,29 and (on the evidence of an offi-
cial from the Ordnance Survey Office) of the fact that a line on a map indicated the centre
of an existing hedge.30

2.2.4  Foreign Law?
In relation to the possibility of judicial notice being taken of foreign law, the Court of
Appeal has said:
Foreign law must be proved strictly. It should be proved . . . by calling a properly qualified
expert in that law, who will give evidence himself unless his testimony is agreed or no
issue is taken. . . . in criminal cases foreign law cannot be the subject of judicial notice.31

24  (2000) 164 JP 273, 276.

25  Duff Development Co v Kelantan Government [1924] AC 797, 805–6.
26  Engelke v Musmann [1928] AC 433. 27  R v Bottrill, ex p Kuechenmeister [1947] KB 41, 53.
28  Read v Bishop of Lincoln [1892] AC 644. 29  Heather v P-E Consulting Group [1973] Ch 189.
30  Davey v Harrow Corporation [1958] 1 QB 60.
31  R v Okolie, The Times, 16 June 2000; transcript at [11].
414
Proof without E vidence

2.3  Statutory Provisions

Statutory provisions may have the effect of requiring judicial notice to be taken of par-
ticular matters. The Interpretation Act 1978, 32 for example, requires judicial notice to
be taken of all Acts passed after 1850, unless the contrary is expressly provided by the
Act in question. While there is no statutory provision requiring judicial notice to be
taken of statutory instruments, the Court of Appeal in R v Jones endorsed the actions of
the trial court in effectively taking judicial notice of the relevant statutory instrument
which provided that the Alcotest R 80 breath-testing device was of a type approved by
the Secretary of State. The Court of Appeal held that ‘the number of decided cases in
which it has been proved that the Alcotest R 80 device is of an approved type has by now
become so large and so widely reported that, in our judgment, a court (including the
jury) is entitled to take judicial notice of that fact, and its formal proof is accordingly no
longer necessary’.33

2.4  The Consequences of Taking Judicial Notice

The consequences of taking judicial notice would seem to differ according to the sub-
ject matter of the inquiry. For example, by their very nature, the results of inquiries
into facts of a political or diplomatic character are treated as binding on the court.
By contrast, in Heather v P-E Consulting Group it was held: ‘Skilled accountants may
well be much better qualified than most judges to formulate and explain [sound
accountancy principles]. But nevertheless . . . it is the judge and not the witness who
must decide whether a witness’s evidence in fact exemplifies sound accountancy
principles.’34

3  Presumptions
A presumption operates to cause a particular fact to be treated as proved unless the pre-
sumption is rebutted. A persuasive presumption is one which operates unless the party
seeking to rebut it discharges the legal burden of disproving the fact in question. An evi-
dential presumption is a weaker one: the party seeking to rebut it bears only an evidential
burden and thus has merely to adduce sufficient evidence to put in issue the existence of
the fact in question. The legal burden then falls on the party relying upon the presump-
tion to prove that fact.
The word presumption is also used loosely in other senses. The word may amount sim-
ply to a shorthand way of referring to a particular principle or rule of law. The ‘presump-
tion of innocence’, for example, refers to the principle that the prosecution in a criminal
case generally bears the legal burden of proving every issue. Equally, the ‘presumption
of sanity’ signifies that the legal burden of proving insanity lies on a defendant seeking
to invoke the defence.35 There is also, for example, an ‘irrebuttable’ or ‘conclusive’ pre-
sumption that a child under 10 cannot be guilty of an offence. Section 50 of the Children
and Young Persons Act 1933 provides: ‘It shall be conclusively presumed that no child
under the age of ten years can be guilty of any offence.’36 This differs from a true pre-
sumption in that it cannot be rebutted, and is thus in reality a rule of law. The possible

32 S 3, s 22(1), Sch 2 para 2.    33  [1970] 1 WLR 16, 20.

34 [1973] Ch 189, 218.    35  See Chapter 2.
36 See R v T [2008] EWCA Crim 815, [2008] 3 WLR 923.
Presumptions 415

human rights implications of the irrebuttable presumption in section 15(2) of the Road
Traffic Offenders Act 1988 that an alleged drink-driver’s blood alcohol level at the time
of the alleged offence was not less than at the time of the specimen were considered in
Griffiths v DPP:
section 15(2) . . . is a fair compromise between the considerations, first, that anyone who
takes any alcohol before driving will to some extent expose the public to risk and that
the level at which an offence [that] is created (which is of a quantitative rather than a
qualitative basis) is fixed is artificial. Parliament, while preserving the right of any per-
son to take a drink before driving, expressed itself in such a way that if such a person
is then subjected to a breath, blood or urine test which shows an excess proportion of
alcohol the person who has provided that specimen is, by section 15(2), assumed to have
had no less a proportion of alcohol in his breath at the time when he was driving. . . . that
is a proportionate response to what is generally perceived to be, and is, reprehensible
conduct on the part of any person who takes a car on to the road having consumed
alcohol. . . . it was not competent to the court to receive evidence from an expert which
would have undermined or contradicted the statutory assumption created by section
15(2). Moreover, that statutory assumption . . . [is] wholly proportionate to the situation
where a person having taken drink then proceeds to drive a motor vehicle on a road.
There is, therefore, no infringement of a defendant’s right to a fair trial under Article
6.1 and 6.2. 37
Further, the word presumption may simply signify a permissible inference. The ‘presump-
tion of intention’, for example, permits the inference to be drawn that a person intended
the natural consequences of his or her actions. Section 8 of the Criminal Justice Act 1967
provides:
A court or jury, in determining whether a person has committed an offence,—
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions
by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the
evidence, drawing such inferences from the evidence as appear proper in the
circumstances.38
In a similar vein, the ‘presumption of the continuance of life’ allows an inference to be
drawn, from the fact that a person was alive on a certain date, that he or she was still alive
on a subsequent date.39 Such inferences do not amount to presumptions which must stand
unless rebutted.
A brief review will now be undertaken of a number of true (that is, rebuttable)
presumptions.

3.1  Presumption of Marriage

‘Where there is a ceremony followed by cohabitation as husband and wife, a strong
presumption arises that the parties are lawfully married.’40 Both the formal validity of

37  [2002] EWHC 792 (Admin), (2002) 166 JP 629 at [30].

38  See also R v Woollin [1999] AC 82.
39  MacDarmaid v A-G [1950] P 218; Re Peete [1952] 2 All ER 599.
40  Mahadervan v Mahadervan [1964] P 233, 244. On the presumption, see generally A H Borkowski,

‘The Presumption of Marriage’ (2002) 14 Child and Family Law Quarterly 251; R Probert, ‘When Are We
Married? Void, Non-Existent and Presumed Marriages’ (2002) 22 Legal Studies 398.
416
Proof without E vidence

the ceremony (for example, that the appropriate licence was issued)41 and the essential
validity of the ceremony (for example, that the parties had capacity to marry)42 are pre-
sumed. Additionally, the presumption of marriage arises from evidence that the parties
cohabited and were reputed to be married.43 It would appear that the presumption of
marriage is a persuasive one44 which ‘can only be displaced by what I would call positive,
not merely “clear”, evidence . . . How positive, and how clear, must depend among other
things upon the strength of the evidence which gives rise to the presumption—primarily,
the length of cohabitation and evidence that the parties regarded themselves and were
treated by others as man and wife.’45 The presumption cannot be relied upon where there
is positive evidence that the statutory requirements for a marriage ceremony were not
complied with.46

3.2  Presumption of Legitimacy

There is undoubtedly a presumption . . . that a child born in wedlock to a married
woman is the child of her husband. That presumption applies not only to a child
born during wedlock but also to a child clearly conceived during wedlock. . . . The
presumption that a child conceived during wedlock is a legitimate child of the hus-
band applies just as much whether the husband and wife are living together in the
ordinary way or whether they are separated by agreement, or by a deed, or simply
separated . . . The presumption ceases to operate if the parties are separated under an
order of the court such as, for example, a decree of judicial separation, which does
away with the duty of the spouses to live together. . . . the presumption that a child
conceived during wedlock is legitimate continues to operate after the presentation of
a petition for divorce or nullity, or even the pronunciation of a decree nisi either for
nullity or for divorce.47
It is clear that this is a persuasive presumption; a party wishing to rebut it bears the legal
burden of proving illegitimacy. Section 26 of the Family Law Reform Act 1969 pro-
vides: ‘Any presumption of law as to the legitimacy . . . of any person may in any civil pro-
ceedings be rebutted by evidence which shows that it is more probable than not that that
person is illegitimate’.

41  Piers v Piers (1849) 2 HL Cas 331, 9 ER 1118.

42  Re Peete [1952] 2 All ER 599; Taylor v Taylor [1967] P 25.
43  In re Taylor, decd [1961] 1 WLR 9.
44  Mahadervan v Mahadervan [1964] P 233; Taylor v Taylor [1967] P 25 (where the presumption in favour

of a marriage (arising from a ceremony and subsequent cohabitation) was held to be incapable of being
rebutted by a presumption in favour of an earlier marriage (also arising from a ceremony and subsequent
cohabitation), because of doubts about the validity of the earlier ceremony. But, ‘if no reason could be
shown for doubting the validity of the earlier ceremony and if no question arose as to the ending of the
earlier marriage by death or divorce, then evidence of the earlier marriage would displace the original
presumption in favour of the later one’ (at 35)).
45  Chief Adjudication Officer v Bath [2000] 1 FLR 8, 18 per Evans LJ. In Mahadervan v Mahadervan,

however, it was stated ‘that where a ceremony of marriage is proved followed by cohabitation as husband
and wife, a presumption is raised which cannot be rebutted by evidence which merely goes to show on a
balance of probabilities that there was no valid marriage: it must be evidence which satisfies beyond reason-
able doubt that there was no valid marriage’: [1964] P 233, 246 (italics added). This older view may now be
regarded as having been superseded.
46  Chief Adjudication Officer v Bath [2000] 1 FLR 8, 18.
47  Knowles v Knowles [1962] P 161, 166–7.
Presumptions 417

3.3  Presumption of Death

By virtue of a long sequence of judicial statements, which either assert or assume such
a rule, it appears accepted that there is a convenient presumption of law applicable to
certain cases of seven years’ absence where no statute applies. That presumption in its
modern shape takes effect (without examining its terms too exactly) substantially as fol-
lows. Where as regards ‘AB’ there is no acceptable affirmative evidence that he was alive
at some time during a continuous period of seven years or more, then if it can be proved
first, that there are persons who would be likely to have heard of him over that period,
secondly that those persons have not heard of him, and thirdly that all due inquiries have
been made appropriate to the circumstances, ‘AB’ will be presumed to have died at some
time within that period.48
It would seem that the presumption of death is an evidential presumption.49
The common law presumption of death exists alongside the following statutory
provisions:
• Section 57 of the Offences Against the Person Act 1861, which provides for the offence
of bigamy, makes it clear that ‘nothing in this section contained shall extend . . . to
any person marrying a second time whose husband or wife shall have been continu-
ally absent from such person for the space of seven years then last past, and shall not
have been known by such person to be living within that time’.
• Section 184 of the Law of Property Act 1925 provides: ‘In all cases where . . . two or
more persons have died in circumstances rendering it uncertain which of them sur-
vived the other or others, such deaths shall (subject to any order of the court), for all
purposes affecting the title to property, be presumed to have occurred in order of
seniority, and accordingly the younger shall be deemed to have survived the elder.’
• The Presumption of Death Act 2013 makes provision for the spouse or civil partner
of a missing person who ‘is thought to have died, or . . . has not been known to be alive
for a period of at least 7 years’, to apply for a declaration that the person is presumed
to be dead.50 Such a declaration is conclusive of the presumed death,51 but may be
varied or revoked.52

3.4  Presumption of Regularity

The presumption of regularity in reality refers to two different presumptions. First, there
is an evidential presumption that a mechanical instrument which is usually in working
order was indeed in working order at a particular time. Thus, ‘if evidence is given that
a mechanical device such as a watch or speedometer . . . recorded a particular time or a
particular speed, which is the purpose of that instrument to record, that can by itself be
prima facie evidence, on which a court can act, of that time or speed’.53 It has been said
of traffic lights that, ‘when you have a device of this kind set up for public use in active
operation, . . . the presumption should be that it is in proper working order unless there is
evidence to the contrary’.54
Secondly, it is presumed that a person acting in an official or public capacity was
acting properly and was properly appointed:  omnia praesumuntur rite esse acta. This

48  Chard v Chard [1956] P 259, 272 per Sachs J.

49  Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, 511. 50 S 1. 51  S 3(1)(a).
52 S 5. 53  Nicholas v Penny [1950] 2 KB 466, 473.
54  Tingle Jacobs & Co v Kennedy [1964] 1 WLR 638, 639.
418
Proof without E vidence

presumption is probably a persuasive one.55 It may not, however, be relied upon by the
prosecution in a criminal case in establishing an essential element of an offence.56

3.5  Res Ipsa Loquitur

What is considered the classic statement of the doctrine of res ipsa loquitur (‘the thing
speaks for itself’)57 was provided in Scott v London and St Katherine Docks Co:
where the thing is shewn to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of care.58
In other words, if an accident is one which in the normal course of events will not have
occurred in the absence of negligence on the part of the defendant, the doctrine of res
ipsa loquitur applies to create a presumption of negligence. An application of the doc-
trine may be found in the decision of the Court of Appeal in Widdowson v Newgate Meat
Corporation. The plaintiff’s claim for damages for personal injuries arose from an acci-
dent which took place when the plaintiff, a pedestrian, was knocked down by a van being
driven by a Mr Scullion on behalf of the defendants, his employers. The Court of Appeal
held that, ‘although it is not common for liability to be established in a road traffic acci-
dent on the application of the maxim “res ipsa loquitur”’,59 the trial judge had been wrong
not to invoke that maxim.
In the present case the van was in the control of Mr Scullion, who was under a duty
to drive it with due care and attention for other road users . . . That having been Mr
Scullion’s duty, it can fairly be said, in the terms of the authorities, that the accident
would not have happened in the ordinary course of things (ie on the footing that the
plaintiff was behaving as an ordinary, prudent pedestrian) if Mr Scullion had used
proper care.60
Thus the maxim applied, and, ‘as the defendant called no evidence to rebut the inference
that he had been negligent’,61 the plaintiff’s appeal was allowed. The Court of Appeal
acknowledged that, ‘if a defendant does adduce evidence, that evidence must be evaluated
to see if it is still reasonable to draw the inference of negligence from the mere fact of the
accident’, and thus ‘the situation might have been very different if Mr Scullion had given
evidence’.62
But what is the strength of the presumption of res ipsa loquitur? In Scott itself it was
stated vaguely that the presumption would afford ‘reasonable evidence’ of negligence
which would stand in the absence of explanation by the defendant. The House of Lords in
Thomson v Kvaerner Govan Ltd was similarly vague. Lord Hope of Craighead, with whom
the other Law Lords agreed, remarked as follows:
There is no doubt that cases do arise from time to time where the onus passes to
the defenders [defendants] to provide an explanation for an accident which does not

55  R v Verelst (1813) 3 Camp 432, 170 ER 1435. 56  Dillon v R [1982] AC 484.
57 See generally R Munday, ‘Does Latin Impede Legal Understanding? The Case of “Res Ipsa
Loquitur” . . . Apparently’ (2000) 164 Justice of the Peace 995.
58  (1865) 3 H & C 596, 601; 159 ER 665, 667. See also Lloyde v West Midlands Gas Board [1971] 1 WLR

749, 755–6.
59  [1998] PIQR P138, P140. 60  [1998] PIQR P138, P143 (italics in original).
61  [1998] PIQR P138, P142. 62  [1998] PIQR P138, P141.
Presumptions 419

point to fault on their part. But if that is to happen the evidence must first raise a
presumption that they were to blame for the accident. The paradigm case is where
the pursuer [claimant] shows that he is entitled to the benefit of the maxim res ipsa
loquitur . . . This requires circumstances to be established which afford reasonable evi-
dence, in the absence of explanation by the defenders, that the accident arose from
their negligence. 63
The question remains, however, whether the presumption is a persuasive or evidential
one. Does the defendant, in providing an explanation for the accident, need to prove
the absence of negligence? Or is the defendant required merely to adduce sufficient evi-
dence of absence of negligence to make it a ‘live issue’, with the burden of proving neg-
ligence resting ultimately with the claimant? Barkway v South Wales Transport Co Ltd,
which concerned a burst tyre, would appear to endorse the view that the presumption
is persuasive:
To displace the presumption, the defendants must go further and prove (or it must emerge
from the evidence as a whole) either (a) that the burst itself was due to a specific cause
which does not connote negligence on their part but points to its absence as more prob-
able, or (b), if they can point to no such specific cause, that they used all reasonable care in
and about the management of their tyres.64
More recently, however, the Privy Council took the view in Ng Chun Pui v Lee Chuen Tat
that the presumption is merely evidential.65 In George v Eagle Air Services Ltd the Privy
Council was apparently of the same view:
This was the defendants’ aircraft, their f light and their pilot. Aircraft, even small
aircraft, do not usually crash, and certainly should not do so. And, if they do, then,
especially where the crash is on land as here, it is not unreasonable to suppose that
their owner/operators will inform themselves of any unusual causes and not unrea-
sonable to place on them the burden of producing an explanation which is at least
consistent with absence of fault on their part. The defendants have in fact never sug-
gested or attempted to suggest any explanation of the accident or any reason prevent-
ing them giving an explanation. In the board’s opinion, they have in the result failed
to displace the inference of negligence which in the circumstances results from the
crash itself. 66
There is yet a further view, which is that the doctrine of res ipsa loquitur does not con-
stitute a true presumption at all. On this view it is neither a persuasive nor an evidential
presumption, but merely gives rise to an inference of negligence. This inference of negli-
gence is to be considered by the trier of fact alongside all the other evidence in the case to
determine whether the claimant has discharged the legal burden of proving negligence on
the part of the defendant. This less rigid, and more principled, approach has been adopted
by the Supreme Court of Canada:
It would appear that the law would be better served if the maxim was treated as expired
and no longer used as a separate component in negligence actions. After all, it was
nothing more than an attempt to deal with circumstantial evidence. That evidence

63 [2003] UKHL 45 at [26] (italics added). 64  [1948] 2 All ER 460, 470.

65 [1988] RTR 298, 301. Referred to approvingly by the Court of Appeal in Widdowson v Newgate Meat
Corporation [1998] PIQR P138.
66 [2009] UKPC 21, [2009] 1 WLR 2133 at [13] (italics added). See generally K Williams, ‘Res Ipsa

Loquitur Still Speaks’ (2009) 125 Law Quarterly Review 567.

420
Proof without E vidence

is more sensibly dealt with by the trier of fact, who should weigh the circumstan-
tial evidence with the direct evidence, if any, to determine whether the plaintiff has
established on a balance of probabilities a prima facie case of negligence against the
defendant. 67
The High Court of Australia, too, has adopted a similar approach:
In Australia, the invocation of the maxim creates no presumption and shifts no burden
of proof to the defendant. All that it does, when applicable, is to raise an inference of the
existence of negligence. In days when jury trials of factual contests in civil causes were
more common in Australia than they are today, the maxim was an occasional friend to
a plaintiff to ensure that the plaintiff got to the jury. It did not, however, ensure a verdict
from the jury in the plaintiff’s favour. It still remained for the judge to instruct the jury
that the plaintiff bore the onus of proving the case on the balance of probabilities and
for the jury to conclude whether they should draw the inference which the plaintiff
invited.68
Support for such an approach can also be found in the judgment of May LJ in Fryer v
Pearson:
It is not, I hope, just affectation which leads . . . me to believe that we should stop using
unhelpful Latin phrases. It troubles me that we still tend to fall into the habit of talk-
ing about maxims or doctrines which go under labels in Latin whose meaning does not
express a defined principle, and which those for whose benefit we operate will probably
not understand.
I do not myself find it particularly helpful to try to define in the abstract what a so-called
doctrine of ‘it speaks for itself’ embraces and then to wonder whether it applies to the facts
of a particular case.69

3.6  Conflicting Presumptions

If two different presumptions of equal strength (for example, two persuasive presump-
tions) apply to a particular issue, but lead to conflicting results, the presumptions effec-
tively ‘neutralize’ each other and the issue is to be determined without recourse to the
presumptions.70

3.7  Conviction as Evidence of Commission of Offence

In Hollington v F Hewthorn & Co Ltd,71 which concerned an action for damages arising
from a road traffic accident, evidence of the defendant’s conviction for careless driv-
ing was held to be inadmissible. Lord Goddard LJ’s judgment is commonly regarded
as authority for the proposition that evidence of the determination of a jury at an
earlier trial is inadmissible to prove the facts on which that determination was based,

67  Fontaine v British Columbia (Official Administrator) [1998] 1 SCR 424 at [27]. See generally M McInnes,

‘The Death of Res Ipsa Loquitur in Canada’ (1998) 114 Law Quarterly Review 547.
68  Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [111] per Kirby J. See generally L Schulz, ‘Res

Ipsa Loquitur in Australia—The Maxim Remains’ (2000) 26 Monash University Law Review 379; S Smith,
‘Another Look at Res Ipsa Loquitur’ (2000) 74 Australian Law Journal 506.
69  The Times, 4 Apr 2000; transcript at [18]–[19]. See generally C Witting, ‘Res Ipsa Loquitur: Some Last

Words?’ (2001) 117 Law Quarterly Review 392.

70  Monckton v Tarr (1930) 23 BWCC 504. 71  [1943] KB 587.
Presumptions 421

as it is merely evidence of the opinion of the jury.72 As was seen in Chapter 12, opinion
evidence, in contrast to evidence of facts, is generally considered inadmissible.73
The rule in Hollington has, however, been modified by legislation in both civil and
criminal cases.

3.7.1  Civil Cases
Section 11 of the Civil Evidence Act 1968 provides:
(1) In any civil proceedings the fact that a person has been convicted of an offence
by or before any court in the United Kingdom or of a service offence (anywhere)
shall (subject to subsection (3) below) be admissible in evidence for the purpose
of proving, where to do so is relevant to any issue in those proceedings, that he
committed that offence, whether he was so convicted upon a plea of guilty or
otherwise and whether or not he is a party to the civil proceedings; but no convic-
tion other than a subsisting one shall be admissible in evidence by virtue of this
section.
(2) In any civil proceedings in which by virtue of this section a person is proved to have
been convicted of an offence by or before any court in the United Kingdom or of a
service offence—
(a) he shall be taken to have committed that offence unless the contrary is proved; and
(b) without prejudice to the reception of any other admissible evidence for the pur-
pose of identifying the facts on which the conviction was based, the contents
of any document which is admissible as evidence of the conviction, and the
contents of the information, complaint, indictment or charge-sheet on which
the person in question was convicted, shall be admissible in evidence for that
purpose.
(3) Nothing in this section shall prejudice the operation of section 13 of this Act or
any other enactment whereby a conviction or a finding of fact in any criminal pro-
ceedings is for the purpose of any other proceedings made conclusive evidence of
any fact.
Thus a conviction is to be regarded as evidence that the offence was committed unless
the contrary is proved. In order to ‘prove his innocence in a subsequent civil action’ a
person can, in the words of Lord Denning MR, ‘call his previous witnesses and hope that
the judge will believe them now, even if they were disbelieved before. He can also call any
fresh witnesses whom he thinks will help his case. In addition, I think he can show that
the witnesses against him in the criminal trial were mistaken. For instance, in a traffic
accident he could prove that a witness who claimed to have seen it was miles away and
committed perjury.’74 In J v Oyston the plaintiff brought a civil action against the defend-
ant, who had previously been convicted of indecently assaulting and raping the plaintiff.
The defendant sought to call evidence to discredit the plaintiff, and in doing so challenge
the convictions. It was held that it was not an abuse of process for the defendant to seek

72  See also Conlon v Simms [2006] EWCA Civ 1749, [2008] 1 WLR 484.
73 In Hollington v F Hewthorn & Co Ltd [1943] KB 587, Lord Goddard LJ said (at 595): ‘It frequently hap-
pens that a bystander has a complete and full view of an accident. It is beyond question that, while he may
inform the court of everything that he saw, he may not express any opinion on whether either or both of
the parties were negligent.’
74  Stupple v Royal Insurance Co [1971] 1 QB 50, 72.
422
Proof without E vidence

to have the issue of his guilt reheard with such new evidence as he sought to adduce; the
public policy considerations preventing a plaintiff in civil proceedings from reopening
the issue of a conviction once it was finally determined did not apply to a defendant in
civil proceedings.75
In determining whether the party seeking to prove his or her innocence has discharged
the burden of doing so, is it permissible effectively to attach different weights to different
types of convictions? If so, then it may be possible to argue, for example, that a conviction
pursuant to a guilty plea should be accorded less weight than one resulting from a trial
and verdict; or that a conviction resulting from a majority verdict should be accorded
less weight than one resulting from a unanimous verdict; or that a conviction against
which no appeal has been taken should not be accorded as much weight as one con-
firmed on appeal. Two conflicting approaches to the question have emerged in the case
law. According to one approach, it is impermissible to inquire into the weight which the
criminal conviction may carry.76 The contrary view, however, is that it is permissible to
look behind the fact of conviction at considerations which may throw light on the weight
to be attached to the conviction:
Take a plea of guilty. Sometimes a defendant pleads guilty in error: or in a minor offence
he may plead guilty to save time and expense, or to avoid some embarrassing fact com-
ing out. Afterwards, in the civil action, he can, I think, explain how he came to plead
guilty.
Take next a case in the magistrates’ court when a man is convicted and bound over or
fined a trifling sum, but had a good ground of appeal, and did not exercise it because it was
not worth while. Can he not explain this in a civil court? I think he can. He can offer any
explanation in his effort to show that the conviction was erroneous.77
The latter approach would seem to have more to commend it, being more sensitive to the
notion of a conviction being merely presumptive of guilt. There is no reason in principle
why the party seeking to rebut the presumption, or the party seeking to uphold it, should
be restricted in any way. While, as indicated in the quotation just presented, the circum-
stances of the conviction may be such that the person seeking to rebut the presumption
may be able to explain it away, there may equally be situations at the other end of the spec-
trum: ‘it . . . is obvious that, when a man has been convicted by 12 of his fellow countrymen
and countrywomen at a criminal trial, the verdict of the jury is a matter which is entitled
to very great weight when the convicted person is seeking, in the words of the statute, to
prove the contrary’.78
In defamation actions, there is an irrebuttable presumption that a conviction is evi-
dence of the commission of the offence. Section 13(1) of the Civil Evidence Act 1968
provides:
In an action for libel or slander in which the question whether the plaintiff did or did not
commit a criminal offence is relevant to an issue arising in the action, proof that, at the
time when that issue falls to be determined, he stands convicted of that offence shall be
conclusive evidence that he committed that offence; and his conviction thereof shall be
admissible in evidence accordingly.

75  [1999] 1 WLR 694, 700.

76  See, eg, Stupple v Royal Insurance Co [1971] 1 QB 50, 75–6 per Buckley LJ. See also Wright v Wright,
The Times, 15 Feb 1971.
77  Stupple v Royal Insurance Co [1971] 1 QB 50, 72–3 per Lord Denning MR. See also Taylor v Taylor

[1970] 1 WLR 1148.
78  Taylor v Taylor [1970] 1 WLR 1148, 1152.
Presumptions 423

The Court of Appeal has provided a succinct summary of the relevant principles in
this area:
(a)  A collateral attack on an earlier decision of a court of competent jurisdiction may
be but is not necessarily an abuse of the process of the court. (b) If the earlier decision is
that of a court exercising a criminal jurisdiction then, because of the terms of sections 11
to 13 of the Civil Evidence Act 1968, the conviction will be conclusive in the case of later
defamation proceedings but will constitute prima facie evidence only in the case of other
civil proceedings. . . . (c) If the earlier decision is that of a court exercising a civil jurisdic-
tion then it is binding on the parties to that action and their privies in any later civil
proceedings. (d) If the parties to the later civil proceedings were not parties to or privies
of those who were parties to the earlier proceedings then it will only be an abuse of the
process of the court to challenge the factual findings and conclusions of the judge or jury
in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings
that the same issues should be relitigated or (ii) to permit such relitigation would bring the
administration of justice into disrepute.79

3.7.2  Criminal Cases
Section 74 of the Police and Criminal Evidence Act 1984 provides:
(1) In any proceedings the fact that a person other than the accused has been convicted
of an offence by or before any court in the United Kingdom or any other member
State or by a Service court outside the United Kingdom shall be admissible in evi-
dence for the purpose of proving that that person committed that offence, where
evidence of his having done so is admissible, whether or not any other evidence of
his having committed that offence is given.
(2) In any proceedings in which by virtue of this section a person other than the accused
is proved to have been convicted of an offence by or before any court in the United
Kingdom or any other member State or by a Service court outside the United Kingdom,
he shall be taken to have committed that offence unless the contrary is proved.
(3) In any proceedings where evidence is admissible of the fact that the accused has
committed an offence, if the accused is proved to have been convicted of the
offence—
(a) by or before any court in the United Kingdom or any other member State; or
(b) by a Service court outside the United Kingdom,
he shall be taken to have committed that offence unless the contrary is proved.

(4) Nothing in this section shall prejudice—

(a) the admissibility in evidence of any conviction which would be admissible apart
from this section; or
(b) the operation of any enactment whereby a conviction or a finding of fact in any
proceedings is for the purposes of any other proceedings made conclusive evi-
dence of any fact.

3.7.2.1  Convictions of Persons other than the Accused

The effect of section 74(1) is that, where proof that a person other than the accused com-
mitted an offence is relevant, that person’s conviction of the offence is admissible in

79  Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321, [2003] 3 WLR 841 at [38].
424
Proof without E vidence

evidence to prove that he or she committed the offence. By virtue of section 74(2), proof of
the person’s conviction of the offence means that he or she is to be taken to have commit-
ted that offence unless the contrary is proved.
The Court of Appeal has held that section 74(1) should be used sparingly.80 Its purpose
is to allow the fact that a person other than the accused has committed an offence to be
placed before the jury, where this fact is relevant81 to an issue in the case. Such issues
encompass not only ‘an essential ingredient in the offence charged, for instance in a han-
dling case the fact that the goods were stolen . . ., but also less fundamental issues, for
instance evidential issues arising during the course of the proceedings’.82
The Court has also rejected the contention ‘that the section applies only to proof of
conviction of offences in which the defendant on trial played no part’. 83 The judge must
consider, however, whether evidence admissible under section 74(1) should neverthe-
less be excluded in the exercise of discretion. In addition, the jury must be clearly told
why the evidence is before them and to what issue it is relevant (as well as to what issues
it is not relevant).84 It would appear that a trial in which section 74(1) has been used will
be regarded as complying with Article 6 if there has been appropriate consideration of
the possibility of discretionary exclusion and appropriate directions have been given to
the jury.85
An indication of what may be regarded as sufficient grounds for the exercise of an
exclusionary discretion has emerged from a number of decisions of the Court of Appeal.
It would seem that where the evidence admissible under section 74(1) ‘expressly or by
necessary inference imports the complicity’ of the accused it should be excluded under
section 78.86 This is because it would be inappropriate for such evidence to be admitted
in the absence of an opportunity for the accused to cross-examine the person con-
victed, particularly in relation to the complicity of the accused. It is of course entirely
possible that, even if the person convicted were to testify at the accused’s trial, the
defence would not exercise its right to cross-examine, or that such cross-examination
if conducted would ‘turn out to be a disaster’ for the defence. This cannot, however, be
assumed. It has also been made clear that, ‘whilst evidence which of itself establishes
complicity should be excluded under section 78, evidence which does not of itself show
complicity but is used as a basis for other evidence to that end need not necessarily be
excluded’.87

80  R v Robertson [1987] QB 920, 928. See also R v Kempster [1989] 1 WLR 1125; R v Mahmood [1997] 1 Cr

App R 414; R v Dixon (2000) 164 JP 721.

81 See R v Wardell [1997] Crim LR 450. 82  R v Robertson [1987] QB 920, 927.
83  R v Robertson [1987] QB 920, 927. 84  R v Robertson [1987] QB 920, 928.
85  MH v UK (Admissibility), Application no 28572/95, 17 Jan 1997:  ‘An application was made by the

prosecution, under section 74 of the Police and Criminal Evidence Act 1984, to use the guilty plea of FS
in the trial of the applicant. Whilst under section 78 of the Police and Criminal Evidence Act 1984, the
judge had a discretion not to admit the guilty plea, the judge, having heard the point argued by counsel
for the applicant and for the prosecution, chose not to exercise this discretion applying the test of whether
the prejudicial effect outweighed the probative value, and thus the plea was admitted. . . . the admission of the
guilty plea must be looked at in conjunction with the warning given to the jury about the relevance of
the guilty plea. In these circumstances . . . the judge’s ruling that the guilty plea be admitted as the probative
value of the guilty plea outweighed the prejudicial effect, does not disclose an arbitrary or unreasonable
exercise of the discretion conferred upon him. . . . the admission of the guilty plea of FS [did not render] the
trial of the applicant unfair.’
86  R v Curry [1988] Crim LR 527; LEXIS transcript.
87  R v Kempster [1989] 1 WLR 1125, 1134. It may be permissible, therefore, for the prosecution to adduce

the evidence to prevent mystification of the jury.

Presumptions 425

An illustration of the application of section 74(1) may be found in R v Robertson.

Robertson was charged with conspiring with Poole and Long to commit burglaries.
Poole and Long pleaded guilty to relevant substantive counts of burglary, with which
Robertson was not charged. At Robertson’s trial, evidence of Poole and Long’s convic-
tions was admitted pursuant to section 74(1), and this was upheld by the Court of Appeal.
An issue in the case was ‘whether there was a conspiracy between Poole and Long’, given
that the prosecution was seeking to prove that Robertson was a party to such a conspiracy.
Evidence of Poole and Long’s convictions of burglary was clearly highly relevant to the
issue of whether there had been a conspiracy between the two of them to commit the
burglaries.88 The Court of Appeal also rejected the argument that the evidence should
have been excluded under section 78. In doing so, it distinguished its earlier decision
in R v O’Connor.89 In that case, O’Connor was charged with conspiring with Beck to
commit an offence. Beck pleaded guilty to the conspiracy. It was held that evidence
of Beck’s conviction of conspiring with O’Connor should not have been admitted in
O’Connor’s trial. The Court of Appeal in Robertson acknowledged that this decision was
correct: Beck’s conviction of the very conspiracy offence with which O’Connor was being
tried might well have led the jury to infer that O’Connor must have conspired with Beck.
In Robertson, however, the convictions of Poole and Long for the substantive offences
did not on their face incriminate Robertson at all. Indeed, even if Poole and Long had
testified at Robertson’s trial, the defence would probably not have exercised its right
to cross-examine them, since such cross-examination would probably have produced
disastrous results for the defence.90
By contrast, section 74(1) was held to be inapplicable in R v Mahmood. Mahmood,
Manzur, and Linton were charged with rape. Linton pleaded guilty. At issue in the
trial of Mahmood and Manzur was whether, as the defendants contended, the com-
plainant had consented or alternatively they had believed that she was consenting, or
whether, as the prosecution contended, she was incapable of consenting by reason of
drink. The Court of Appeal held section 74(1) to be inapplicable on the basis that it
was impossible, without knowing the reason for Linton’s guilty plea, to identify the
precise issue in the trial to which evidence of this plea was relevant. Linton could have
pleaded guilty because he had known that the complainant could not consent by rea-
son of drink; or because he had known that she was not consenting; or because he had
been reckless about whether she was consenting. Given the prosecution’s contention
that the complainant could not consent by reason of her drunken state, ‘there was a
very real danger that the jury would assume that Linton’s plea meant that he knew full
well she could not consent, and conclude therefore these appellants must have known
that also’.91

3.7.2.2  Convictions of the Accused

Section 74(3) makes analogous provision in relation to the accused: where the fact that
the accused committed an offence constitutes admissible evidence,92 proof of his or her
conviction of the offence means that the offence is to be taken to have been committed by
him or her unless the contrary is proved.
The Court of Appeal has observed:
Section 74(3) of the 1984 Act is uncomplicated and it means exactly what it says: once
it is proved (whether by agreement or otherwise) that the defendant was and remains

88  [1987] QB 920, 927. 89  (1986) 85 Cr App R 298. 90  [1987] QB 920, 928.

91  [1997] 1 Cr App R 414, 419. 92  See especially Chapter 10.
426
Proof without E vidence

convicted of a criminal offence, and assuming that evidence of that fact is admissible,
the prosecution is not required, merely because the defendant denies guilt, to prove that
the defendant was guilty of the offence, or to assist him to prove that he was not guilty,
or indeed to call witnesses for either purpose. The . . . presumption is that the conviction
truthfully reflects the fact that the defendant committed the offence. Equally, however,
it is clear that the defendant cannot be prevented from seeking to demonstrate that
he did not in fact commit the offence and, therefore, that the jury in the current trial
should disregard the conviction. If so, it follows that he should be entitled to deploy
all the ordinary processes of the court for this purpose, and in particular to adduce
evidence that will enable him to prove, whether by cross-examination of prosecution
witnesses or calling evidence of his own, that he was not guilty and that the conviction
was wrong. It also follows that, if the defendant does adduce evidence to demonstrate
that he is not guilty of the offence, it remains open to the Crown then to call evidence
to rebut the denial.
The danger in this situation is satellite litigation, which for obvious reasons is unde-
sirable. That danger acknowledged, the stark principle remains that any defendant is
entitled to contest his guilt in accordance with the ordinary processes of the crimi-
nal justice system, and therefore to challenge or to seek to undermine the Crown’s
case against him or to advance evidence in support of his own case. That principle
extends to . . . presumptions relating to his guilt of an earlier offence. To prevent him
from doing so, or deny him the opportunity of adducing admissible evidence that he
did not commit the earlier offence would be likely to result in an unfair trial of the
present offences. . . .
In our judgment it is essential that the defendant should provide a more detailed
defence statement in which, quite apart from setting out his case in relation to the
offences with which he is presently charged, he should identify all the ingredients of the
case which he will advance for the purposes of discharging the . . . burden of proving that
he did not commit the earlier . . . offences. That may enable the prosecution to prepare
draft admissions of fact, and also to collate the necessary evidence. The bare assertion
that the defendant did not commit these offences is inadequate.
Informed by the defence statement the Crown will prepare its case. It is a broad rule of
practice that the Crown should call all the evidence it intends to adduce to establish the
defendant’s guilt before the end of its case. If that principle were to apply in a case like
the present, it would in effect mean that the Crown would be obliged to re-present the
evidence which led the jury to convict the defendant of the [earlier] offences. That would
nullify the statutory provisions which enable the Crown to rely on the fact that he was
convicted. It would be satellite litigation indeed. Although in the ultimate analysis it will
be for the trial judge to make whatever decisions are appropriate for the proper conduct
of the trial, as it seems to us, it would at the very least be open to him to consider permit-
ting the Crown to postpone its decision whether to call any evidence to confirm the guilt
of the earlier offences and the correctness of the convictions until after the close of the
defendant’s case.93
Notably, however, the Court has cautioned that any over-zealousness in the use of the
exclusionary discretion provided for by section 78 of the Police and Criminal Evidence
Act 1984 might have the effect of improperly undermining the potential effect of a per-
missive statutory provision:
Without seeking to curtail the valuable judicial weapon against unfairness in the crim­
inal justice system embodied in and exemplified by section 78, it would be something

93  R v C (J W) [2010] EWCA Crim 2971, [2011] 1 WLR 1942 at [9]‌, [10], [14], [15].
Summary and Conclusion 427

of a novel proposition for the exercise of this discretion to enable the court to exclude
evidence when its admissibility stems from the enactment of a statutory provision
deliberately designed to permit the evidence to be adduced. Accordingly, the evidence
of the earlier convictions cannot be excluded on the basis of some nebulous sense of
unfairness. If section 78 were used to circumvent a clear statutory provision for no bet-
ter reason than judicial or academic distaste for it, the discretion would be improperly
exercised.94

3.7.2.3  Ancillary Matters

Section 75(1) makes it clear that, where a conviction is admissible in evidence, evidence
of the contents of certain documents is admissible for the purpose of identifying the facts
on which the conviction was based:
Where evidence that a person has been convicted of an offence is admissible by virtue of
section 74 above, then without prejudice to the reception of any other admissible evidence
for the purpose of identifying the facts on which the conviction was based—
(a) the contents of any document which is admissible as evidence of the conviction; and
(b) the contents of—
(i) the information, complaint, indictment or charge-sheet on which the person in
question was convicted, or
(ii) in the case of a conviction of an offence by a court in a member State (other than
the United Kingdom), any document produced in relation to the proceedings
for that offence which fulfils a purpose similar to any document or documents
specified in sub-paragraph (i),
shall be admissible in evidence for that purpose.
Section 75(4) provides:
Nothing in section 74 above shall be construed as rendering admissible in any proceed-
ings evidence of any conviction other than a subsisting one.
What constitutes a subsisting conviction has been explained by the Court of Appeal:
The purpose which lies behind the enactment of section 74 was to enable proof of the com-
mission of an offence by X to be proved by the record without the necessity of calling X to
admit the truth of what appears on the record. Therefore, what is important is either that a
jury has found X’s offence proved, or that X himself has before a court formally admitted
that he has committed the offence. Provided that his plea has not been withdrawn nor the
verdict of the jury, where there has been one, has been quashed on appeal, the conviction
subsists. Whether or not X has been sentenced is irrelevant on the issue of whether he has
committed the offence.95

4  Summary and Conclusion

The ‘shortcuts to proof’ recognized in the law of evidence fall broadly into three catego-
ries. First, a party may make a formal admission. Secondly, it may be possible for judicial

94  R v Clift [2012] EWCA Crim 2750, [2013] 1 WLR 2093 at [36]. See generally M Stockdale and A O’Cain,

‘The Admissibility of Convictions Post Clift and Harrison’ (2013) 177 Criminal Law and Justice Weekly 376.
95  R v Robertson [1987] QB 920, 931.
428
Proof without E vidence

notice to be taken. Thirdly, various presumptions are recognized, the sources of which
are either the common law or statute. Presumptions may be legal (requiring the party
seeking to rebut the presumption to disprove the particular matter) or evidential. An
emerging trend has been to treat the doctrine of res ipsa loquitur as not being a presump-
tion at all, but rather as giving rise to a mere inference. Specific provisions on the use of
a conviction as proof of the commission of an offence are to be found in section 11 of the
Civil Evidence Act 1968 and section 74 of the Police and Criminal Evidence Act 1984,
and this chapter has explored the interpretation of these provisions.

Further Reading
D Hamer, ‘Presumptions, Standards and Burdens: Managing the Cost of Error’ (2014) 13 Law,
Probability and Risk 221
Index

‘absolute’ doctrine Administrative Court propensity evidence  265–6

legal professional breach of recording ‘spent’ convictions  85
privilege 239–42 requirements 107 of statements as part of res
abuse of process doctrine hearsay 300 gestae 79
improperly obtained administrative decisions statutory provisions  317–18
evidence, exclusion and hearsay  285 admissions
of 174, 175 admissibility 2, 3 by agents  294
staying of proceedings on see also discretionary formal 409–10
grounds of 174 exclusion; documentary privilege 224
undercover police operations evidence; exclusion adult, appropriate
and entrapment  197–203 of evidence; previous absence of 105
access to legal advice consistent/inconsistent adversarial tradition 57–68
denial of  102–4 statements disclosure 58–63
accident reconstructions bad character inquisitorial model
expert evidence  331 evidence 259, 261 distinguished 57
accomplices 370, 371 confessions  10, 92, 117–19 judges, role  57, 66, 67
accusation credibility 319–21 neutral judge principle  65–8
silence in face of  127–8 defences 319 orality principle  63–5
statements made on  79 discretionary exclusion  2, 15 pure adversarialism  58
accused evaluation 321–2 adverse inferences 7–8
character evidence  249–50 expert evidence  315–40 compellability of
bad character evidence  age 324–5 witnesses 362
257–76 confessions 322–3 failure or refusal to account
child defendants  401–7 credibility 319–21 for presence at a particular
co-accused defences 319 place 7
testifying on behalf of  364 DNA evidence  325–8 failure to account for objects,
use of confession by  119 evaluation 321–2, 353–4 substances, or marks  7
convictions of  425–7 foreign law  330 failure to appear  128
convictions of persons other further failure to mention facts relied
than 423–5 illustrations 330–3 on in court  7
failure to testify  363 Law Commission  338–40 silence, right to  8, 133–4,
lies, evidence of  374–6 mens rea 318, 321 138–9, 362
mentally handicapped  obscenity 324 affirmations 357
111–12 other jurisdictions  335–8 age
no cross-examination by, in probabilities 328–30 evidential burden of proof  46
person 391–3 psychological expert evidence on  324–5
special assistance, autopsies 323–4 agents, admissions by 294
requiring 401–7 statutory agents provocateur 202
spouses and partners  364–9 provisions 317–18 aids to communication 385
testifying in his/her own free 64 alcohol-related offences 35,
defence 358–64 hearsay  18, 288, 297, 46, 321
acoustic analysis 331–2 299–304 Alldridge, P 350
actus reus interests of allocation of
burden of proof  30, 46 justice 299–304, 305 responsibility 10–12
adducing evidence, burden maker of confession, ambush defences  61, 62, 126
of see evidential burden admissible in evidence anonymity
of proof only against  117–19 of witnesses  405–7
administration of justice mens rea 318, 321 Anthony, Donna 313
see justice, lawful previous consistent anti-social behaviour orders
administration of statements, evidence of  78 (ASBOs)  41, 55, 282
430
Inde x

appeals and lack of veracity as a business documents

see also Court of Appeal witness 247–8 and hearsay  290–1
bad character evidence  272 non-defendants 276–9
discretionary probative value  263, Canada
exclusion 101–2 266–7, 277–8 care warnings  373
restrictive interpretation of propensity to offend vs evidential burden of
appellate courts to concept credibility 258 proof 29–30
of trial fairness  185 ‘reprehensible hearsay 306–7, 308
Turnbull warnings behaviour’ 254–5 identification
and identification seven ‘gateways’  257, 259, evidence 158–9
evidence 159 264, 265, 269, 270 improperly obtained
appropriate adults, sexual offences  255, 264–5 evidence, exclusion
absence of 105 specific statutory provisions of 189
articles, incriminating admitting 253–4 law reform  23
statements made on trials in which evidence not legal professional
discovery of 79 cross-admissible 275–6 privilege 240, 241
assault, indecent 83–4 bad faith doctrine police informers, disclosure
attempts see also good faith doctrine of identity  208–9
to commit speeding or improperly obtained post-offence conduct  6
perjury offences  369 evidence, exclusion sanity, presumption of  31
audio recordings 106 of 173, 187 sexual history evidence  393
Auld Review (2001) 293, oppression 97 standard of proof  49, 50
305, 379 by police  164–5, 173, 187 undercover police operations
law reform  24, 61, 188 balance of probabilities and entrapment  198–9
Australia burden and standard of Cannings, Angela 313
cross-examination 82 proof  35, 50, 52, 53, 56 care warnings 373, 374
dominant purpose test  233 confessions 119 cautions
expert evidence in  337–8 sworn and unsworn absence of  104–5
hearsay 308 evidence 357 questioning under  129
hostile witnesses  72 bankers, compellability CCTV footage  331, 334, 388
improperly obtained of 367 cell confessions,
evidence, exclusion of  189 Bayes’ theorem 328 warnings on 373
law reform  23, 25 Bentham, Jeremy 16 Centre for Socio-Legal Studies,
res ipsa loquitur 420 best evidence rule 8 University of Oxford 22
automatism beyond reasonable doubt certainty
legal burden of proof  30 standard of proof  47–8, of guilt  175
non-insane 46 49, 51 character evidence 246–79
bias attack on character of
bad character evidence 253–79 collateral-finality rule  86–8 another 269–71
admissibility 259, 261 identification evidence  154 bad character  253–79
appeals 272 Birmingham Six 92, 123 character, putting in
attack on character of blameworthiness 254 issue 249–50
another 269–71 blood samples 151, 326 civil proceedings  248–9
complexity 20 bodily samples see samples criminal proceedings  247–79
contamination 272–5 body language 64, 73 defendants 249–50
Criminal Justice Act breath samples 174 good character,
2003 254–79 bribes 86 relevance 250–2, 279
cross-admissibility 272–5 Bridgewater Three 92 misconduct, previous  246,
defendant and prosecution, Browne v Dunn, rule in 247, 253, 254, 274
relevance to important cross-examination 82, 91 propensity  250, 258, 260
issue between  260–6 burden of proof 20, 29–47 relevance 246–8
defendants 257–76 see also evidential burden reputation 294
directions to jury  271–2 of proof; legal burden Vye directions  250, 251, 252
evidence of bad character, of proof charged or questioned,
amounting to  254–7 balance of failure to mention facts
false impression, probabilities 35, 50 when 7, 129–31
correction 267–9 legal and evidential child witnesses 356, 385–6
important explanatory burden 29–30 measures designed to ease
evidence 258–60, 277 mitigation of damage  45 burden on  376–7
Inde x 431

sworn and unsworn civil trials between client and legal

evidence 357–8 see also civil proceedings; adviser 231–2
children and young persons jury trials confidential
see also child witnesses adverse inferences  7 communications 226
child psychiatry  324 contempt of court  53 with third parties  232–3
concealing birth of  114 criminal conduct, comparison evidence 334–5
as defendants  401–7 allegations 53 compellability of witnesses
egocentrism of 376 discharge by agreement or see also witnesses
expert evidence  324–5 frustration 44 accused in a criminal sense
indecent assaults on  248, 255 general rule  50–2 co-accused, testifying on
pornography 265 legal burden of proof  44–5 behalf of 364
suggestibility of 376 previous consistent testifying in his/her own
circumstantial evidence statements in, defence 358–64
direct evidence evidence 79–80 bankers 367
distinguished 5 privilege 222 judges 367
civil partners see spouses and quasi-criminal sovereign 367
partners proceedings 54–5 Wednesbury
Civil Procedure Rules witnesses, calling  66 unreasonableness 360–1
character evidence  248 claims ‘compelled information’,
disclosure 58, 59 ‘class’ and ‘content’  206 use of 148
exclusionary rules and Clark, Alan 204 competence of
discretions 13 Clark, Sally 313 witnesses 283, 355–8
expert evidence  314, 316, class claims criminal cases, general
346, 348, 352, 354 integrity 210 principles 356–7
expert witnesses  343, 344 closure of case, adducing sworn and unsworn
live links  377 evidence after 71 evidence 357–8
public interest immunity  212 co-accused/co-defendants concoction see fabrication
waiver 236 bad character and lies
civil proceedings evidence 266–7 conduct, criminal
see also civil trials confessions  97, 118, 119 allegations 53
allocation of oppression 97 post-offence conduct  6
responsibility 12 testifying on behalf of  364 confessions
calling witnesses  7, 65 coercion admissibility  10, 92, 117–19
character evidence  248–9 false confessions  93–4 cells 373
conviction as evidence cognitive error, risk of 247 co-accused/
of commission of collateral facts  2, 228, 248 co-defendants  97, 118, 119
offence 421–3 collateral incidents 367 contravening PACE section
and criminal collateral-finality rule 76(2), use of  114–16
proceedings 19–20 see also cross-examination corroboration 122
disclosure 58, 59 description 82–4 definitions 95
formal admissions  410 exceptions derivative evidence,
hearsay in bias 86–8 use 114, 116
effective abolition in civil incapacity 88 discretionary exclusion see
cases 20 previous convictions  85–6 discretionary exclusion
general principle  282–4 proof of previous editing 118
specific situations  284–5 inconsistent expert evidence  322–3
improperly obtained statements 84–5 expression, evidence of  115
evidence, exclusion veracity, general fabrication and lies  92, 94
of 191–2 reputation for lack facts discovered in
orality principle  65 of 88–9 consequence of  114–15
proof without evidence  410 reform 89–90 false see false confessions
public interest comity, international 206, 207 hearsay 79, 294
immunity 212 common enterprise and identification
self-incrimination, privilege hearsay 295, 299 evidence 166
against 145 Commonwealth jurisdictions jury directions and
standard of proof  50–5 improperly obtained warnings  100, 111–12, 124
ultimate issues  341 evidence, exclusion of  185 maker of, admissible
witnesses 65 communication in evidence only
Woolf reforms  225 aids to 385 against 117–19
432
Inde x

confessions (cont) public interest Court of Appeal see Court

mandatory exclusion  immunity 216–19 of Appeal
96–100, 119, 121, 124 standard of proof  53 Crown Court see
mentally handicapped contents claims, defined 206 Crown Court
defendants and continuance 6 European Court see
warnings 111–12 continuance of life, European Court of
and miscarriages of presumption of 415 Human Rights
justice 92–4 contributory negligence failure to mention facts relied
and oppression  10, 96–8 civil trials  44 on in court  7, 129–31
partly adverse convictions magistrates’ courts  285
statements 113 of accused  425–7 out-of-court
potential ancillary matters  427 statement 288–90
unreliability 98–100 consequences 30 overriding objective,
reform 121–4 as evidence of commission of application by 25
reliability of offences 420–7 refreshing the memory
evidence 186, 322 of persons other than the in 74–5
speech, evidence of accused 423–5 credibility
manner 115 previous 85–6 admissibility 319–21
subsequent, ‘tainting’ ‘spent’ 85 of witnesses  2, 10, 89,
of 110–11 unsafe 67 156, 319–21
undercover police operations wrongful 240 witnesses 284
and entrapment  195–6 corroboration vs propensity to offend  258
in United States  118, confessions 122 credit, evidence as to 2, 250
119, 121–2 corroborative evidence  368 course of evidence  81, 83
unreliable 98–100 law reform  23 creditworthiness
‘verballing’ 92 perjury 369 witnesses 72, 79, 89
and visual identification reliability of evidence  18 crime
evidence 18 speeding 368–9 facilitation of  237–9
voir dire hearings  119, 120–1 uncorroborated Criminal Cases Review
withdrawal of case from evidence 368–9 Commission  23, 153, 314
jury 112–13 counterfeiting 34 criminal investigations
writing 115 course of evidence 57–91 vs administrative
confidentiality adversarial tradition  57–68 inquiries 149
legal professional neutral judge principle  65–8 Criminal Justice Act 2003
privilege 226 trial 68–71 bad character
public interest Court of Appeal evidence 254–79
immunity 216 see also appeals statutory exceptions  288–93
and right to silence  137 admissibility 315, 317 Criminal Justice and Public
confiscation orders 34 adverse inferences  7 Order Act 1994 128–44
confrontation, allocation of see also silence, right to
identification by 163 responsibility 12 section 34  128–41
contamination of character evidence  249, 251, ‘on being questioned
evidence 164, 272–5 260–1, 263 under caution’  129
contemporaneous physical collateral-finality rule  83 definition of ‘fact’  131–2
state, statements confessions 94 directions to jury  138–9
concerning 298 hostile witnesses  74 European human rights
contemporaneous state legal burden of proof  39–40 dimensions 140–1
of mind, statements no case to answer fact which the accused
concerning submissions 70 could reasonably
res gestae 296–8 previous consistent have been expected to
contemporaneous verification statements, evidence  77 mention 133–7
of documents 74, 75 testimonial vs real ‘failure to
contempt of court evidence 8, 9 mention’ 129–31
civil trials  53 withdrawal of case from inferences which may be
compellability of jury 112–13 drawn 138–9
witnesses 358 witnesses 390–1 legal advice to remain
jury trial, implications  20–1 courts silent 133–7
legal professional contempt see contempt no-comment interviews,
privilege 244 of court evidence of 140
Inde x 433

‘offence’ 129 collateral-finality rule see directions see jury directions

relevant factors, other  137 collateral-finality rule and warnings
reliance on a fact  132 as to credit  81 disciplinary principle
section 36  141–3 and examination-in-chief  80 and exclusion of improperly
‘account for’  142–3 limitations on  81–2 obtained evidence  172
‘offence specified’  142 malpractice 87 disclosure
section 37 143 none by defendant in by accused  8
witnesses 369–74 person 391–3 advance, by prosecution  60
Criminal Law Revision purposes 80–1 adversarial tradition  58–63
Committee 125 and reliability  80 civil 58, 59
Criminal Procedure Rules video recordings  383–4 criminal 58, 60–3
expert evidence  345, 347, 354 Crown 368 expert evidence  352
criminal proceedings Crown Court failing to disclose  59
see also accused; confessions; exclusionary rules and inadvertent 243
identification evidence; discretions 14 location of police observation
jury trials; police; sexual workload of 123 points 210–11
offences; silence, right to; Crown Court Study police informers, disclosure
witnesses Royal Commission on of identity  208–10
calling witnesses  65–6 Criminal Justice  22, 66, prosecution 60
character evidence  247–79 69, 126, 314 unused material  60–1
and civil proceedings  19–20 Crown privilege see public discretionary exclusion
conviction as evidence interest immunity see also admissibility;
of commission of Crown Prosecution Service confessions
offence 423–7 (CPS) 210, 388 admissibility 2, 15
disclosure 58, 60–3 culpability 254 analysis 109–10
duty of participants  25 customs 413 appropriate adults,
fair hearing, right to  27 absence of 105
formal admissions  409–10 death, presumption of 417 breaches of PACE 1984
hearsay  10–11, 286–311 deceit 108 and/or Code of
issues in criminal defamation  51, 422, 423 Practice 102–8
evidence 17–19 defence breaches of Code D 
memory, refreshing  74–6 bearing legal burden  50 164–6
police informers, disclosure disclosure 61–3 caution, absence of  104–5
of identity  208–10 failure to call witnesses  7 common law discretion  101
privilege, role in pre-trial lack of 30 confessions 100–10
proceedings 222 legal burden borne by  50 identification
public interest testifying in his/her own evidence 161–6
immunity 212–15 defence 358–64 improprieties 108
quasi-criminal defence statements 62 legal advice, denial of access
proceedings 54–5 defences to 102–4
self-incrimination, privilege admissibility 319 recording requirements,
against 145–51 ambush  61, 62, 126 breach of  106–8
standard of proof  47–50 civil trials  44 relevance of evidence  3
testimonial vs real legal burden of proof  31 safety interviews  108–9
evidence 9 defendants see accused witnesses 392
ultimate issues  341 degrading treatment see DNA evidence  151, 175–6,
witnesses 356–7 inhuman or degrading 325–8, 346
cross-admissibility 272–5 treatment or punishment see also forensic evidence;
trials in which evidence not demeanour 64, 73 samples
cross-admissible 275–6 Dennis, I H 397 dock identification 161–2
cross-examination deprivation orders 34 documentary evidence
see also witnesses derivative evidence, use 114, 116 see also statements
allocation of description, evidence of 160 business documents and
responsibility 12 diminished responsibility hearsay 290–1
bad character evidence  269 legal burden of proof  31 disclosure 59
bribes 86 diplomatic relations 206, 207 hearsay 290–1
Browne v Dunn, rule direct evidence memory-refreshing
in 82, 91 circumstantial evidence documents, status  75–6
character evidence  248 distinguished 5 pre-existing documents  152
434
Inde x

documentary evidence (cont) European Court of admissibility see

public documents  284 Human Rights admissibility
as real evidence  8–9 criminal investigations age 324–5
self-incrimination, privilege vs administrative in Australia  337–8
against 151–2 inquiries 149 ‘battle of experts’ and
verified contemporaneously  and implications of Human presentation of expert
74, 75 Rights Act 26 evidence 346–52
dogs, reactions of tracker 6 self-incrimination, privilege confessions 322–3
dominant purpose test against 145 disclosure 352
third party silence, right to  136–7, 140 DNA evidence  325–8
communications 233 undercover police evaluation 352–3
drinking see alcohol-related operations and fact and opinion
offences entrapment 193–4, 197 distinction 315
driving offences violations of Article 3  97 foreign law  330
drinking and driving  35, 46 violations of Article 8  further illustrations  330–5
highways, offences 177–80 hearsay 295
concerning 41 evidence-in-chief and infant
speeding 368–9 character evidence  249 deaths 313–14, 353
drugs offences  4, 98, 287, 321 child witnesses  385–6 insanity 317
burden and standard of video recording  382–3 Law Commission on  338–40
proof 33–4, 40 evidential burden of proof 42 necessity 316
cannabis  142, 195, 202 see also legal burden obscenity 317, 324
heroin  98, 99, 142, 178, 198, of proof other jurisdictions  335–8
200, 201, 202, 331 and Human Rights Act  35–6 presentation 346–52
silence, right to  139, 142 incidence 46–7 probabilities 328–30
due process 19 and legal burden  29–30, 46 psychological
duress 46 ex parte hearings 205 autopsies 323–4
Dworkin, Ronald 17 examination-in-chief 67, 68, 89 rule against hearsay and use
and cross-examination  80 of work of others  340–1
E-fit images 162 exceptions, statutory specialized or technical
entrapment see undercover express knowledge 336
police operations and Human Rights Act 1998, ‘ultimate issues’  341–2
entrapment effect 32–8 in United States  335, 337
ethnicity, and reverse-onus expert witnesses
identification 154 provisions 32–3, 34 see also witnesses
European Convention on implied 38–44 ‘blaming’ of experts  345–6
Human Rights exclusion of evidence qualifications, duties, and
see also fair hearing, right to; see also admissibility; responsibilities 342–5
Human Rights Act 1998; discretionary exclusion exposure duration
inhuman or degrading silence, right to  144–5 and identification
treatment or punishment; and violations of Article 8 evidence 154
private and family life, ECHR 177–80 expression, evidence of 115
right to respect for; exclusionary rules and extrinsic policy  17, 18, 19, 28,
torture discretions 13–16 94, 174
domestic jurisprudence see also discretionary hearsay 281–2
and violations of exclusion issues in criminal
Article 8 180–2 total exclusion of evidence 17, 18, 19
exclusion of items of evidence 17 legal professional
improperly obtained exculpatory evidence privilege  221, 226, 240
prosecution evidence  172 character evidence  250 eyesight, defects in 153
incorporation into confessions 95, 118
domestic law 26 expert evidence  322 fabrication and lies
violations 171–203 hearsay 296 see also perjury
of Article 3  97, 183–4 partly adverse of accused  374–6
of Article 6  95, 146, statements 113 confession evidence  92, 94
150, 152, 177–8, 184, questioning of witnesses  79 detection of 64
194, 219 silence, right to  131 falsity, evidence of  369
of Article 8  177–82, 203 expert evidence 313–54 insanity 31
of Article 10  217–18 accident reconstructions  331 Lucas directions  374, 375–6
Inde x 435

by police  92 restrictive interpretation of general knowledge

propensity to appellate courts to concept judicial notice on matters
untruthfulness 262 of trial fairness  185 of 410–13
and recording self-incrimination, privilege good character evidence
requirements 106 against 145, 147 relevance 250–2, 279
facial mapping  9, 168, 332 silence, exclusion of good faith doctrine
facts evidence 144 see also bad faith doctrine
collateral  2, 228, 248 unfair trials  67, 175, character evidence  247
definitions 131–2 404, 426 confessions 102
discovered in consequence of witness anonymity  405 hearsay 285
confession 114–15 false allegations 376, 395 identification evidence  165
historical 413 false confessions 92–3 improperly obtained
in issue  2, 83 coerced-compliant 93 evidence, exclusion of 
offence charged  256–7 coerced-internalized 93–4 173, 186, 187, 189
opinion and fact voluntary 93 undercover police operations
distinction 315 false impression, and entrapment  199
of political or diplomatic correction 267–9 group identifications 163
nature 413 familiarization Guildford Four 92, 93
presumptions of fact arrangements 390 guilt
and law 32 family proceedings consciousness of 374
questions of law or standard of proof  52 presumption of 422
fact 10, 94 family tradition for purpose guilty verdict
refusal to mention  7, of proving pedigree or certainty of guilt  175
129–31, 133 existence of marriage life imprisonment possibly
reliance on 132 hearsay 284 resulting from  33
tribunal of fact  4 fear, witnesses in 289
which accused could fines 34 Hall, Keith 193
reasonably have been fingerprints 5 harassment 55, 211
expected to mention  133–7 firearms hearings
factum probandum (facts in offences involving  37, 97 voir dire hearings  119,
issue) 2 fit and proper person test 120–1
factum probans (relevant hearsay 285 hearsay 280–312
facts) 2 Flin, R H 376 and administrative
failure to mention facts relied foreign law decisions 285
on in court 129–31 expert evidence  330 admissibility  18, 288, 297,
fair hearing, right to judicial notice  413 299–304
see also European forensic evidence 346 allocation of
Convention on Human formal admissions 409–10 responsibility 10–11
Rights; improperly fraud business and other
obtained evidence, counterfeiting and documents 290–1
exclusion of fraudulent trading  34 in civil proceedings
‘balancing’ approach facilitation of  237–9 effective abolition in civil
required 150, 152 serious 317 cases 20
concept of trial fairness in standard of proof  51, 52, 55 general principle  282–4
England and Wales  185–6 undercover police operations specific situations  284–5
confessions 95 and entrapment  192 common enterprise  295, 299
and European Court of free proof 16–17 common law
Human Rights  177–8 freedom of expression exceptions 293–9
discretionary public interest confessions 79, 294
exclusion 100–10 immunity 215–16 Criminal Justice
guarantees provided by freedom of information Act  2003, statutory
Article 6 ECHR  152 public interest exceptions 288–93
hearsay 307 immunity 215–16 criminal
human rights legislation  27 frustration proceedings 286–311
improperly obtained legal burden of proof  44, 45 debate 280–2
evidence, exclusion defined 280
of  173, 177–80, 185 Galligan, D J 18–19 European human rights
requirements of gender dimensions 307–11
fairness 179–80 and identification  154 evaluation 305–7
436
Inde x

hearsay (cont) Human Rights Act 1998 important explanatory

exclusionary rules and see also European Convention evidence 258–60, 277
discretions 15 on Human Rights; fair imprisonment 33, 34
expert evidence  295 hearing, right to improperly obtained evidence,
multiple 304–5 compatibility with  56 exclusion of 171–92, 203
out-of-court statement, effect 32–8 civil proceedings  191–2
unavailability of exclusion of improperly future recommendations 
maker 288–90 obtained evidence prior 185–91
previous inconsistent to 172–7 integrity  172, 174, 183, 184,
statements 292 implications 26–7 187, 188, 189, 190
res gestae exception see law reform  23 justice, lawful administration
res gestae of  175, 183, 185, 187, 205
rule inapplicable, identification evidence position prior to Human
proceedings where  285–6 see also Turnbull warnings Rights Act  172–7
safeguards 305 and identification in United States  186–7
spouses and evidence violations of Article 3
partners 294, 303 accuracy issues  153–4, 156 ECHR and exclusion of
statements made on appeals 159 evidence 183–4
accusation 79 breaches of PACE Code D, violations of Article 8
unavailability vs exclusions for  164–6 ECHR and exclusion of
unwillingness to and confessions  166 evidence 177–80
testify 302 confrontation 163 domestic
United States  310 description evidence jurisprudence 180–2
unreliability, perceived  280 distinguished 160 impropriety, investigatory
and use of the work of discretionary improperly obtained
others 340–1 exclusion 161–6 evidence, exclusion
weight of evidence  283 dock identification  161–2 of 171–92
witnesses, calling  65–6 event factors  153, 154 inadvertent disclosure 243
highways, offences facial mapping  9, 168, 332 incapacity
concerning 41 fingerprints and bodily collateral-finality rule  88
historical facts 413 samples 5 of witnesses  88, 320
Home Office Working Group ‘fleeting glance’ test  158 independent person
on the Right of Silence 125 formal identification mentally handicapped
homicide procedures 162–3 defendants 111–12
confessions, facts of good or poor indictable offences
discovered in quality 157–8 see also trials on indictment
consequence of  114–15 group identifications  163 mentally handicapped
facts in issue  2 jury, withdrawal of case defendants 111
motive 6 from 112–13 recording requirements  106
racist 255–6 mistaken indictment, trials on see trials
homosexuality 46 identifications 153–4, on indictment
hostile questions 67 156, 157 infant deaths and expert
hostile witnesses parades 163, 164 evidence 313–14, 353
questioning one’s own perception, defects information
witness 72–4 in 64, 153–4 see also freedom of
unfavourable photographs and video information
distinguished 73 recordings  162, 166–9, 181 ‘compelled’ 146, 148
House of Commons Science post-event factors  153, 154 failure to provide,
and Technology street identification  164–5 prosecutions
Committee in United States  159–60 for 148–51, 152
expert witnesses  345–6 video identification  163 public 293
human rights visual 18 in publications  216–17
see also European voice identification  161 informers, identity of
Convention on Human weakness 156 police 208–10
Rights; Human Rights witness factors  153 inhuman or degrading
Act 1998 illegality, police 19 treatment or punishment
‘grave violation’  185 ill-treatment 98 and oppression  96, 97
hearsay 307–11 impartiality see bias violations of Article 3 of
silence, right to  140–1 implied assertions 250, 286 ECHR 183, 184
Inde x 437

injunctions 244 journalistic sources 217 implications 20–2

innocence judges legal burden of proof  30–44
presumption of  31, 32, see also judicial notice; jury length 12
33, 38, 43 directions and warnings LSE Jury Project,
protection of innocent in adversarial England 22, 247
from wrongful tradition 57, 66, 67 mock juries  247–8
conviction 18, 19 adverse inferences  128 moral dimension  282
inquisitorial model compellability of as opposed to trial by judge
adversarial tradition witnesses 363, 367 alone 21
distinguished 57 confessions, role in  94 photographs and video
insanity in inquisitorial tradition  57 recordings, identification
see also automatism magistrates’ courts  411 from 166–9
expert evidence  317 neutral judge principle  65–8 previous consistent
legal burden of proof  30, 31 no case to answer statements, evidence  76–9
integrity submissions 70 research 22
class claims  210 judicial notice sexual offences  391
of criminal justice consequences of taking  414 simulated 21
system  18, 187, 189, 190, customs 413 standard of proof  47–50
198, 199, 204 facts of a political or testimonial vs real
and exclusion of improperly diplomatic nature  413 evidence 8
obtained evidence  172, foreign law issues  413 voir dire hearings  11,
174, 183, 184, 187, 188, general knowledge, pursuant 119, 120
189, 190 to 410–13 where defence bears legal
territorial 217 historical facts  413 burden 50
witnesses 407 local knowledge  411, 412 where prosecution bears legal
intention, presumption proper inquiry, pursuant burden 47–50
of 238–9 to 413–14 withdrawal of case from
interests of justice statutory provisions  414 jury 112–13, 157–9
admissibility jury directions and warnings witnesses, calling  65
in 299–304, 305 see also misdirection, effect; JUSTICE (all-party
confessions 94 Turnbull warnings and legal human rights
disclosure in 219 identification evidence organization) 189
statements made on bad character justice, lawful
discovery of incriminating evidence 271–2 administration of 58
articles 79 compellability of improperly obtained
International Criminal Court witnesses 361–2 evidence, exclusion
Rome Statute  187 confessions  100, 111–12, 124 of  175, 183, 185, 187, 205
International Criminal essential ingredients  138 privilege 245
Tribunal for Rwanda 187 and exclusion  16 witnesses  378, 403, 404, 423
International Criminal identification
Tribunal for the former evidence 154, 155 Law Commission
Yugoslavia 187 mentally handicapped character evidence 
interpreters 387 defendants 111–12 247, 258–9
interviews relevance of evidence  4 on expert evidence  338–40
defined 106 silence, right to  138–9 hearsay 286
no-comment 140 standard of proof  48, 49 on jury trials  21
recording requirements  106 witnesses 386–91, 392–3 law reform  24
intimidated witnesses see jury trials witnesses 404
special measures for see also civil trials; criminal law reform 23–6
vulnerable or intimidated proceedings; jury Lawrence, Stephen 255–6
witnesses directions and warnings ‘laws’ of evidence 19–20
intrinsic policy  17, 18, 19, adverse inferences  128 leading questions
74, 223 allocation of lack of  71–2
investigations responsibility 10, 12 legal advice
criminal, vs administrative burden of proof see burden defined 230–1
inquiries 149 of proof denial of access to  102–4
investigatory impropriety confessions, role of silence, right to  133–7, 152
see impropriety, jury in 94 legal advice privilege  226, 229,
investigatory hearsay, rule against  20 238, 241, 245
438
Inde x

legal advisers litigation privilege  226–8, 232, Miranda warnings 121–2

communications with 238, 241, 245 Mirfield, P 195
client 226, 231–2 live links  377–8, 381, 402 miscarriages of justice
definitions 228–30 local knowledge and confessions  92–4
legal professional judicial notice  411, 412 Criminal Cases Review
privilege 228–32 logical relevance 3, 4 Commission 23
legal burden of proof Low Copy Number (LCN) innocent, protection
see also evidential burden process from wrongful
of proof DNA evidence  327 conviction 18, 19
borne by defence  50 LSE Jury Project, Matrix Churchill case  204,
borne by prosecution  47–50 England 22, 247 208, 211–12
civil trials  44–5 Lucas directions withdrawal of case from
criminal trials  30–44 fabrication by jury 112–13
discharging 42 accused 374, 375–6 misconduct, previous
drugs offences  33–4, 40 character evidence  246, 247,
Edwards formula  39 Mack, K 372 253, 254, 274
and evidential magistrates’ courts 285, 411 definition of
burden 29–30, 46 Mahmood, Mazher 193 ‘misconduct’ 254
express statutory exceptions malice aforethought of police  87
Human Rights Act 1998, motive 6 misdirection, effect
effect 32–8 malpractice burden and standard of
reverse-onus police 87 proof 44, 50
provisions 32–3, 34 unfounded allegations  103 mistake and identification
frustration 44, 45 mandatory exclusion of evidence 153–4
implied statutory confessions M’Naghten rules
exceptions 38–44 co-defendant’s confession by legal burden of proof  30–1
incidence 30–45 a defendant, use  119 moral prejudice 246–7
misdirection, effect  44 direction to jury where morphine, drugs offences 40
self-defence 44 confession passes section motive
substantive law 45 76(2) test  100 circumstantial evidence  6
Woolmington rule  30–2, 39 oppression 10, 96–8 multiple hearsay 304–5
legal professional privilege potential murder see homicide
see also legal advice unreliability 98–100
privilege; litigation reform 121 narrative, rule against 76
privilege statutory provisions  124 national security
‘absolute’ doctrine  239–42 manslaughter 104 public interest
collateral facts  228 marriage immunity 206–7
contempt of court  244 see also spouses and partners necessity
definitions 226–8 presumption of  415–16 expert evidence  316
facilitation of crime or Matrix Churchill 208 negligence
fraud 237–9 report into  204, 211–12 see also contributory
legal advisers  228–30 McColgan, A 399 negligence
non-availability of McGarry directions 139 burden and standard of
privilege in another mechanical instruments, proof  44, 45, 51, 52
jurisdiction 242 presumption of facts in issue  2
pre-existing documents  228 regularity 417 inference of 419
secondary evidence  242–4 memory legal professional
statutory abrogation  233–4 impaired 321 privilege 235, 236
waiver 234–7 refreshing in legal public interest immunity  218
legal relevance 3, 4 cases 74–6 public service  207
legal representation/ mens rea and res ipsa loquitur 418,
profession 392 burden of proof  30, 31, 46 419, 420
see also legal professional expert evidence on  318, negotiations
privilege 321, 322 ‘without prejudice’  223–5
legitimacy, presumption mental handicap or disorder neutral judge principle
of 416 appropriate adults, calling witnesses  65–6
licensed conveyancers 229 absence of 105 questioning witnesses  66–8
lies see fabrication and lies expert evidence  323 New Zealand
lip-reading experts 333, 334 and warnings  111–12 character evidence  249
Inde x 439

hearsay 308 out-of-court ‘plus value’

identification evidence  166 statement 286, 307 legal relevance  3
no case to answer unavailability of maker in police
submissions 69–70 hearsay evidence  288–90 see also confessions;
no-comment interviews 140 overriding objective PACE (Police and
application by court  25 Criminal Evidence
‘oath-helping’ Criminal Procedure Act) 1984; undercover
lack of 72 Rules 24–5 police operations and
oaths and affirmations  disclosure 58 entrapment
95, 357 bad faith by  164–5, 173, 187
objects, substances, or marks PACE (Police and Criminal breaches of rules of police
failure or refusal to Evidence Act) 1984 investigation 173
account for 7 appropriate adults, fabrication by 92
obscenity absence of 105 informers, disclosure of
expert evidence on  317, breaches of  102–8, 154, identity 208–10
324 164–6, 170 location of police observation
offences caution, absence of  104–5 points, disclosure  210–11
alleged facts  256–7 Codes of Practice  102–3, malpractice 87
attempts to commit  369 104, 106, 108, 122, 129 notebooks of police
concealing birth of a breaches of Code D  154, officers 74
child 114 164–6, 170 secret filming by  181
confessions vs actual confessions  95, 96, 99, 109 Police and Criminal Evidence
commission of  195–6 contravening section Act (PACE) 1984 see PACE
conviction as evidence of 76(2), use of  114–16 (Police and Criminal
commission of  420–7 role of section 78(1)  116 Evidence Act) 1984
Criminal Justice and Public improperly obtained policy  202, 229, 248
Order Act 1994  129 evidence, exclusion of  189 burden and standard of
definitions 129 legal advice, denial of access proof  34, 39, 41, 45
drinking and driving  35 to 102, 102–4 extrinsic  17, 18, 19, 28, 94,
drugs  4, 33–4, 40, 139, 142 litigation privilege  227 174, 221, 226, 240, 281
firearms, involving  37 mentally handicapped intrinsic  18, 19, 74, 223
indictable 106 defendants 111 public  108, 109, 175, 223,
manslaughter 104 recording requirements, 224, 225, 236
nature of 199 breach of  106–8 political nature, judicial notice
perjury  357, 358–9, 369 unfairness 161 on matters of 413
post-offence conduct  6 voir dire hearings  120 pornography 265
propensity to commit  260 Packer, H L 19 post-offence conduct 6
robbery  104, 154, 179, 182 parades, identification 163, 164 post-traumatic stress disorder
sexual see sexual offences parliamentary sovereignty 26 (PTSD) 319
shoplifting 267 partly adverse statements 113 predictability 15, 16, 36
terrorist  35, 36, 109 partners see spouses and unpredictability  15, 37,
theft 253–4 partners 56, 373
‘unexceptional pedigree, proving prejudice
opportunity to commit’  hearsay 284 exclusionary rules and
201, 202 perception, defects discretions 13
official or public capacity in 64, 153–4 identification evidence  154
regularity of persons perjury moral 246–7
acting in 417 see also fabrication and lies reasoning 246
opinion evidence see expert corroboration 369 preliminary hearings 12
evidence/witnesses offence of  357, 358–9 prepared statements
opportunity and photographs and right to silence  130, 134
circumstantial evidence 5 expert evidence  331 preponderance of
oppression identification probability 50
and confessions  10, 96–8 evidence 162, 166–9 presence at a particular place
defined  96, 97, 109 real evidence  9 failure or refusal to
oral evidence physical disabilities account for 7
testimonial evidence as  8 witnesses with  379 presumptions 414–27
orality principle piracy 34 conflicting 420
adversarial tradition  63–5 planning inquiries 230 continuance of life  415
440
Inde x

presumptions (cont) probabilities, expert evidence diplomatic relations  206, 207

conviction as evidence on 328–30 freedom of
of commission of probative value information 215–16
offence 420–7 bad character evidence  263, law, development  205
death 417 266–7, 277–8 location of police observation
definitions 31 relevance of evidence  3, 4 points, disclosure  210–11
of fact and law  32 process values 4 national security
of innocence  31, 32, professional relationships and analogous
33, 38, 43 privilege in 245 concerns 206–7
intention 238–9 proof without evidence 409–28 police informers, disclosure
legitimacy 416 civil cases  410 of identity  208–10
marriage 415–16 criminal cases  409–10 procedure 212–15
regularity 417–18 formal admissions  409–10 proper functioning of public
res ipsa loquitur 418–20 judicial notice  410–14 service 207–8
sanity 31 presumptions 414–27 Scott Report  204, 211–12
pre-trial hearings propensity public safety issues 109,
allocation of admissibility 265–6 177, 217
responsibility 11 character evidence  250, 258, public service
previous consistent/ 260, 265–6 proper functioning  207–8
inconsistent statements credibility vs propensity to publications
see also statements offend 258 hearsay evidence  284
admissibility 91 to untruthfulness  262 information in  216–17
admissible as part of res proportionality principle 33 published works dealing
gestae 79 prosecution with matters of public
in civil trials  79–80 burden of proof  31 nature 284, 293
in criminal trials  76–9 defendant and prosecution,
hearsay 292–3 relevance to important quasi-criminal
made on discovery of issue between  260–6 proceedings 54–5
incriminating articles  79 disclosure 60, 60–1 questioning of witnesses 66–8
made on accusation  79 legal burden borne by  47–50 see also cross-examination
proof of previous inconsistent minister of justice, as cross-examination  68
statements 84–5 prosecutor perceived as  58 hostile witnesses  72–4
previous convictions 85–6 testifying for  365–6 improper 81
private, giving evidence protected witnesses 391–2 and leading questions  71–2
in 381–2 provocation 319 memory, refreshing in
private and family life, right to psychiatric injury criminal cases  74–6
respect for 190 expert evidence and ‘oath-helping’  72
privilege on 319, 323–4 questioning one’s own
see also legal psychological autopsies 323–4 witness 71–80, 90
professional privilege; psychological evidence 360 questions
self-incrimination, public capacity, regularity of caution, questioning
privilege against persons acting in 417 under 129
concept 221 public documents hostile 67
Crown 205 admissibility 284 of law or fact  10, 94
legal advice  226, 229, 238, public gallery, clearing 388 leading 71–2
241, 245 public information 293 questioned or charged,
litigation  226–8, 232, 238, public interest failure to mention facts
241, 245 immunity 204–20 when 7, 129–31
other professional privileges, ‘balancing’ approach questioning of witnesses see
whether existing  245 required  208, 209, 211, questioning of witnesses
pre-trial criminal procedure, 219, 239
role in 222 civil cases  212 rape
solicitor–client 240 ‘class’ claims and ‘contents’ bad character
waiver 209–10 claims 206 evidence 269, 270–1
‘without prejudice’ comity, false allegations  395
negotiations 223–5 international 206, 207 myths 372
proactive techniques confidentiality 216 rape shield  393
undercover police operations contempt of court  216–19 real evidence
and entrapment  192–3 criminal cases  208–12 examples 8
Inde x 441

self-incrimination, privilege potential unreliability  98–100 Runciman Royal Commission

against 151–2 undercover police operations on Criminal Justice
testimonial evidence and entrapment  197 confessions 121, 123
distinguished 8–9 remedial principle Crown Court Study  22, 66,
reasoning prejudice 246 and exclusion of improperly 69, 126, 314
rebuttal evidence 83 obtained evidence  172 expert evidence  342, 350
recording requirements, and ‘reprehensible behaviour’ law reform  24
confessions bad character no case to answer
breach of evidence 254–5 submissions 70
requirements 106–8 reputation silence, right to  125, 126
records character 294
hearsay evidence  284 hearsay evidence  284 safety interviews 108–9
re-examination veracity, lack of  88–9, 247–8 samples  5, 151, 174, 326
course of trial  68 res gestae see also DNA evidence;
video recordings  383–4 see also previous consistent/ forensic evidence
reform inconsistent statements; sanity
collateral-finality rule  89–90 statements presumption of 31
confessions 121–4 availability of maker of a Sawoniuk, Anthony (trial for
law 23–6 statement 298 war crimes) 8
orality principle  64–5 hearsay 294 Scott Report 204, 211–12
standard of proof, civil spontaneous screens 381, 386
proceedings 55 statements 295–6 searches 186
refreshing the memory statements accompanying secondary evidence
in court  74–5 and explaining a relevant legal professional
out of court  76 act 296 privilege 242–4
status of documents  75–6 statements admissible as self-corroboration, rule
refusal or failure to account part of 79 against 76
for objects, substances, or statements concerning self-defence
marks 7 contemporaneous physical evidential burden of
refusal or failure to account state 298 proof 46
for presence at a particular statements concerning legal burden of proof  44
place 7 contemporaneous state of self-incrimination, privilege
regularity, presumption mind 296–8 against
of 417–18 res ipsa loquitur 418–20 civil proceedings  145
relevance of evidence 2–5 responsibility ‘compelled information’,
character allocation of  10–12 use of 148
evidence 246–8, 279 reverse-onus provisions criminal proceedings  145–51
concept 13 legal burden of definitions 221–2
cross-examination 81–2 proof 32–3, 34 and exclusion of improperly
direct and immediate  4 Richardson, Carole 93 obtained evidence  173
exclusionary rules and right to respect for private and information, failure to
discretions 13 family life 190 provide 148–51, 152
good character  250–2 right to silence see silence, production of documents/
logical vs legal  3, 4 right to real evidence  151–2
silence, right to  127 road traffic offences 35 settlements 223
statements accompanying improperly obtained sexual offences
and explaining a relevant evidence, exclusion assault, indecent  83–4
act 296 of 173–4 bad character
Wigmore approach  3, 4, 15 Turnbull warnings evidence 255, 264–5
reliability of evidence 18 and identification collateral-finality rule  84
see also unreliability/ evidence 155–6 complainants in trials  391
potential unreliability robbery  104, 154, 179, 182 cross-examination 81, 84
confessions 186, 322 Royal Commission on DNA evidence  176
cross-examination 80 Criminal Justice see homosexuality
and exclusion of improperly Runciman Royal (historical) 46
obtained evidence  171–92 Commission on Criminal pornography 265
expert evidence  316 Justice previous inconsistent
hearsay 20 Royal Commission on statements, proof  84–5
identification evidence  164 Criminal Procedure 125 rape see rape
442
Inde x

sexual offences (cont) sexual history evidence, contemporaneous state of

rape shield  393 restriction on  393–401 mind, concerning  296–8
sexual behaviour  394 surveys 387 defence 62
sexual history evidence, video-recorded definitions 286
restriction on  393–401 evidence-in-chief 382–3 made on accusation  79
standard of proof  52 warnings 386–91 made on discovery of
on young people  248, 255 wigs and gowns, dispensing incriminating articles  79
shoplifting 267 with 382 oral 113
silence, right to specialized or technical out-of-court 286,
see also Criminal Justice and knowledge 288–90, 307
Public Order Act 1994 expert evidence  336 partly adverse  113
accusation, in face of  127–8 speech, evidence of pre-prepared 130, 134
adverse inferences  8, 133–4, manner 115 previous consistent 
138–9, 362 speeding 76–9, 292–3
Criminal Justice and Public corroboration 368–9 previous inconsistent 
Order Act 1994  128–44 Spencer, J R 376 84–5, 292
development of law  125–7 ‘spent’ convictions 85 spontaneous 295–6
directions to jury  138–9 spontaneous statements 295–6 written 64
European human rights spouses and partners 364–9 statutory abrogation
dimensions 140–1 see also marriage; private legal professional
exclusion of evidence  144–5 and family life, right to privilege 233–4
facts which accused respect for statutory exceptions see
could reasonably civil partners  294 exceptions, statutory
have been expected to evaluation 366–7 statutory interpretation
mention 133–7 hearsay 294, 303 principles 173
failure to mention  129–31 testifying for a stay of proceedings
inferences which may be co-accused 366 abuse of process doctrine  174
drawn 138–9 testifying for still images 163
law reform  23, 24 prosecution 365–6 stolen goods 253
legal advice to remain testifying for the street identification 164–5
silent 133–7 accused 366 study of evidence 1
no-comment interviews, Stagg, Colin 193 substance abuse see drugs
evidence of 140 standard of proof offences
waiver 136 beyond reasonable sudden infant death syndrome
weight of evidence  133, 134 doubt 47–8, 49, 51 (cot death) 329
similar fact evidence 248, 279 civil proceedings  50–5 suicide notes 323, 324
sole purpose test confessions 119 summary trials  23, 66, 162
third party criminal proceedings  47–50 burden and standard of
communications 233 defence bearing legal proof 38, 43
solicitor’s clerk 107 burden 50 summing up see jury directions
sovereign, family proceedings  52 and warnings
compellability of 367 function 47 surveillance devices 166, 192–3
special measures for intermediate 55–6 suspects
vulnerable or intimidated misdirection, effect  50 see also accused
witnesses 379–91, 380–5 reform 55 identity unknown  162
see also mental handicap or in United States  55–6 known and available  162–3
disorder statements known and unavailable  163
child witnesses  385–6 see also documentary sworn and unsworn
cross-examinations evidence evidence 357–8
defendant in person  391–3 accompanying and
discretion 392 explaining a relevant tape recordings 191, 201
legal representation  392 act 296 see also video recordings
protected witnesses  391–2 admissible as part of  res telephone intercepts,
warnings 392–3 gestae 79 evidence of 180
eligible witnesses  379–80 availability of maker  298 terrorism  35, 36, 109
evidence in private  381–2 compelled 151–2 testimonial evidence 8–9
intermediaries 384 contemporaneous physical see also orality principle;
live links  381 state, concerning  298 witnesses
Inde x 443

compelled testimony  222 withdrawal of case from unreliability/potential

Thayer, J B 20 jury 157–9 unreliability 16, 18, 64
theft 253–4 Twining, W 16, 17 see also reliability of
third parties evidence
communication with  232–3 ‘ultimate issues’ hearsay 280
tort actions expert evidence on  341–2 improperly obtained
facts in issue  2 unavailability and evidence, exclusion of  186
torture unwillingness to testify mandatory exclusion of
improperly obtained difference between  302 confessions 98–100
evidence, exclusion unavailability of makers silence, right to  125
of 183, 186 of out-of-court unsworn evidence 357–8
and oppression  96, 97 statements 288–90 unused material,
tracker dogs, reactions 6 undercover police operations disclosure of 60–1
transparency 21 and entrapment 192–203 urine samples 151
trials abuse of process
see also fair hearing, right to doctrine 197–203 veracity, general reputation for
adducing evidence after contemporary approach, in lack of 88–9
closure of case  71 English law  194–203 bad character evidence  247–8
adversarial tradition  57–68 defendant’s criminal ‘verballing’
Anglo-American trial record 200 confessions 92
process 63 definition of video identification 163
civil see civil trials ‘entrapment’ 194 video recordings
course of  68–71 entrapment, no cross-examination 383–4
criminal see jury trials defence of 194 evidence-in-chief 382–3
on indictment see trials on and European Court of expert evidence  331
indictment Human Rights  193–4, 197 hearsay 311
inquisitorial model  57 nature and extent of police identification evidence 
no case to answer participation in the 166–9, 181
submissions 69–70 crime 199–200 re-examination 383–4
order of procedure  68–9 nature of offence  199 vulnerable witnesses  388
summary see summary trials officer’s role in obtaining video superimposition
‘trial within a trial’ see voir evidence 196 mapping 332–3
dire hearings PACE, section 78(1)  195–7 views (inspections) 8
unfair  67, 175, 404, 426 reason for police violence, threat of 96
withdrawal of case from operation 199 visual identification
jury 112–13 ‘unexceptional expert evidence on  18
trials on indictment opportunity to commit visual recording
see also indictable offences offence’ 201, 202 of interviews  106
disclosure 62 unfavourable witnesses 72, 73 voice identification 161
dock identification  161 unfitness to plead  30, 31, 317 voir dire hearings  11, 119,
judicial notice  411 United States 120–1, 317
legal burden of proof  38, 43 confessions  118, 119, 121–2 volenti non fit injuria
tribunal of fact 4 Confrontation Clause  310 civil trials  44
Turnbull warnings entrapment 194 vulnerable and intimidated
and identification expert evidence  335, 337 witnesses (VIWs) 387,
evidence  155–61, 167, 169 Fourth Amendment 388, 389
see also identification rights 186, 187 see also special measures for
evidence; jury directions hearsay 310 vulnerable or intimidated
and warnings identification witnesses
appeals 159 evidence 159–60 Vye directions
appraisal of  159–60 improperly obtained character evidence  250,
content of warning  155–7 evidence, exclusion 251, 252
description, evidence of  160 of 186–7
full warning  156–7 ‘knock-and-announce’ rule, waiver
modified warnings  161 Fourth Amendment  187 legal professional
voice identification  161 Sixth Amendment  310 privilege 234–7
when requirement for standard of proof  55–6 privilege 209–10
warning 155 unknown suspects 162 silence, right to  136
444
Inde x

Ward, Judith 92, 314 witnesses measures designed to ease

warnings see jury directions see also collateral-finality burden on  376–407
and warnings; Turnbull rule; cross-examination orality principle  65
warnings and identification anonymity 405–7 protected 391–2
evidence calling 7, 65–6 questioning see questioning
weapons children 356, 385–6 of witnesses
firearms, offences civil proceedings  65 testimonial evidence  8–9
involving 37, 97 compellability see therapy for  389
and identification compellability of unfavourable 72, 73
evidence 154 witnesses vulnerable see special
Wednesbury unreasonableness competence 283, 355–8 measures for vulnerable
compellability of contemporaneous or intimidated witnesses
witnesses 360–1 verification of witness factors, mistaken
weight of evidence  2, 4–5, 10 documents 74, 75 identifications 153–4
expert evidence  316 corroboration see Woolmington rule 30–2
hearsay 283, 285 corroboration statutory exception,
silence, right to  133, 134 credibility of  2, 10, 89, 156, implied 39
Weinstein, J B 20 284, 319–21 writing
Wellborn, O G III 63, 64 creditworthiness 72, 79 confessions 115
Wigmore approach criminal proceedings  65–6 Yerkes-Dodson law 154
cross-examination 80 in fear  289 young offenders
relevance 3, 4, 15 hostile see hostile witnesses and mentally handicapped
wigs and gowns, dispensing incapacity of  88, 320 defendants 112
with 382 intimidated see Youth Justice and
‘without prejudice’ special measures Criminal Evidence Act
negotiations for vulnerable or 1999 379–401
privilege 223–5 intimidated witnesses Zuckerman, A A S 21
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