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EXAMINATION OF WITNESSES IN CRIMINAL PROCEEDINGS. EXAMINATION IN CHIEF. This is examination of a witness by/on behalf of the party who called him.

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examination in chief

EXAMINATION IN CHIEF

This is examination of a witness by/on behalf of the party who called him.

Thus, a prosecution witness is examined in chief by counsel for the prosecution and a defence witness is examined in chief by counsel for the accused who called the witness

leading questions

Leading questions

A leading question is a question which either suggests the desired answer or suggests the existence of facts of which the witness has not testified

As a general rule, leading questions should not be asked during examination in chief, though there are exceptions (e.g. introductory matters, matters which are not in dispute and by agreement of the parties) and the judge does possess discretion to permit the asking of leading questions during examination in chief in the interests of justice

slide4

D is charged with the indecent assault of C. C is called as a witness for the prosecution and the first question she is asked by counsel for the prosecution during examination in chief is “what did you do when the accused touched your breast?”

Which of [a]-[c] is true?

[a] The question is a leading question but counsel is normally entitled to ask leading questions during examination in chief

[b] The question is a leading question and counsel is not normally entitled to ask such questions during examination in chief

[c] The question is not a leading question

[b] is true

memory refreshing before the witness goes into the box

Memory refreshing before the witness goes into the box

A witness may read through a statement which he made reasonably close to the events which it documents before going into the witness-box (e.g. a statement made to the police)

This may affect the weight of the evidence so the prosecution should inform the defence when a prosecution witness has read through his statement.

Witnesses should not be permitted to discuss their evidence with other witnesses or to read or hear the statements of other witnesses

slide6

Saleem is to be called as a witness for the prosecution at a murder trial. Before going into the witness box, Saleem reads through his police statement.

True/False?

A witness should never be permitted to read through his statement before he goes into the witness box

False

memory refreshing in the witness box criminal proceedings s 139 1 cja 2003

Memory refreshing in the witness box (criminal proceedings) s.139(1) CJA 2003

A witness giving oral evidence about a matter may memory refresh in criminal proceedings from a document which he made or verified at an earlier time if: he testifies that it records his recollection of the matter at the earlier time; and his recollection of the matter is likely to have been significantly better at the earlier time than it is when he testifies.

Document includes anything in which information is recorded but not a recording of sounds or moving images (s.140) (i.e. can’t memory refresh from recordings)

memory refreshing in the witness box criminal proceedings s 139 1 cja 2003 cont

Memory refreshing in the witness box (criminal proceedings) s.139(1) CJA 2003 (cont)

S.139(2) permits memory refreshing from transcripts of sound recordings if equivalent conditions satisfied

memory refreshing in civil proceedings
Memory Refreshing in Civil Proceedings
  • The position is still governed by the common law
  • A witness may memory refresh in civil proceedings if the document was contemporaneous (i.e. was made while the facts were still fresh in his memory) and either the witness made the document or he verified it (i.e. he read it or had it read to him and confirmed it) whilst the facts were still fresh in his memory
  • Contemporaneity is a question of fact and degree (i.e. it is not a rigid concept)
  • The court possesses discretion to permit memory refreshing from a non-contemporaneous document
inspection of memory refreshing documents

Inspection of memory refreshing documents

They may be inspected by the other party and the witness may be cross-examined in relation to them, if cross-examination is relevant

admissibility of memory refreshing documents
Admissibility of memory refreshing documents
  • Memory refreshing documents not normally admissible, though there are exceptions, i.e.
  • where the witness is cross-examined on parts of the document which were not used for memory refreshing and the party who called the witness desires its admission; or
  • where it is suggested during cross-examination that the document was fabricated; or
  • where the evidence of the witness is inconsistent with the document; or
  • where it is difficult for the jury to follow cross-examination without a copy.
admissibility of memory refreshing documents continued
Admissibility of memory refreshing documents (continued)
  • Where a witness is cross-examined on a memory refreshing document which, consequently, is received in evidence, the statement is admissible as evidence of any matter stated of which the witness’ oral evidence would be admissible
  • It is admissible in criminal proceedings under a hearsay exception created by CJA 2003 s120; in civil proceedings the position is governed by s.6(5) Civil Evidence Act 1995.
slide13

Asoka, aged 70, witnesses a murder. Several days later he makes a statement to the police which he dictates, checks and signs. He is called by the prosecution, testifies that his police statement records his recollection of the murder at the time when he made it and is permitted to memory refresh when he testifies.

Which of (i) to (iii) is/are true?

(i) Memory refreshing should not have been permitted because the document was made several days later

(ii) Asoka may be cross-examined on inconsistencies between his evidence and the document

(iii) The document may become admissible

(ii) and (iii) are true

During cross-examination, defence counsel puts inconsistencies between his evidence and the memory refreshing document to Asoka. The judge admits the document in evidence.

slide14

Previous statements made by witness in criminal proceedings who cannot reasonably be expected to remember the matters stated well enough to give oral evidence thereof

  • If the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them well enough to give oral evidence of them in the proceedings and cannot reasonably be expected to do so; and
  • he testifies that, to the best of his and belief, he made the statement and it states the truth; then
  • the statement is admissible (under a hearsay exception created by CJA 2003 s.120) as evidence of a matter stated of which his oral evidence would be admissible
slide15

Sean, aged 80, witnesses a robbery and, that day, makes a statement to the police which he checks and signs. By the time of the trial, more than two years later, Sean, whose memory is very poor, cannot remember the details of the robbery but testifies that, to the best of his belief, he made the statement and it states the truth.

Which of [a] or [b] is true?

[a] Sean’s police statement may be admissible under a statutory hearsay exception

[b] If Sean is incapable of remembering the facts even if he is allowed to memory refresh then his hearsay evidence will be inadmissible.

[a] is true

previous consistent statements i e self serving statements

Previous consistent statements (i.e. “self serving” statements)

These are previous oral or written statements which are consistent with their maker’s testimony in court

As a general rule such statements are not admissible in criminal proceedings, but this is subject to exceptions

previous consistent statements exceptions to the general rule in criminal proceedings

Previous consistent statements Exceptions to the general rule in criminal proceedings

The major situations in which previous consistent statements are admissible in criminal proceedings are:

to rebut a suggestion of recent fabrication;

where the statement identifies or describes a person, object or place;

where it a complaint made by the victim of an alleged offence or

where it is a wholly exculpatory statement made by the accused

recent fabrication

Recent Fabrication

A previous consistent statement is admissible under a hearsay exception created by CJA 2003 s.120 as evidence of matters stated of which its makers’ oral evidence would be admissible to rebut a suggestion made during cross-examination that the witness’ oral evidence was fabricated

slide19

Wasim is charged with robbery in Newcastle. Several days after the robbery, Wasim told Brad that he had been in London on the day of the robbery. At his trial, Wasim intends to testify that he was in London on the day of the robbery and intends to call Brad to repeat the statement he made to him.

Which of (i) to (iii) is true?

(i) The statement is a previous consistent statement

(ii) The statement will be admissible if, when the prosecution cross-examine Wasim, they assert that his alibi was a recent fabrication

(iii) If the statement is admissible it is admissible to prove that Wasim was in London at the relevant time

They are all true

statements identifying or describing persons objects or places

Statements identifying or describing persons, objects or places

A previous consistent statement is admissible under a hearsay exception created by CJA 2003 s.120 as evidence of matters stated of which its maker’s oral evidence would be admissibleif it identifies or describes a person, object or place.

The hearsay exception only applies if the witness testifies that, to the best of his belief, he made the statement and it states the truth

slide21

Kevin witnesses a robbery and identifies Lorna as the robber at a video identification procedure. He also tells P.C. Smith that the robbers car registration number was L123. At Lorna’s trial Kevin is permitted to give evidence of the police station identification of Lorna and to testify that the person in the dock (i.e. Lorna) is the robber and PC Smith is permitted to repeat Kevin’s statement to him.

Which of (i)-(ii) is/are true?

(i) The evidence concerning the police station identification should not have been admitted

(ii) The evidence concerning the registration number should not have been admitted

They are both false

complaints made by victims of alleged offences

Complaints made by victims ofalleged offences

A previous consistent statement made by a personwho claims to be the victim of an offence to which the proceedings relate is admissible under a hearsay exception created by CJA 2003 s.120(1) as evidence of matters stated of which its maker’s oral evidence would be admissible provided that

the statement consists of a complaint about conduct which constitutes the offence or part thereof, and

the complaint was made as soon as could reasonably be expected, and

complaints made by victims of alleged offences cont

Complaints made by victims ofalleged offences (cont)

the complaint was not made as result of threat or promiseand

the witness gives oral evidence in relation to subject matter before statement adduced, and

the witness testifies that, to the best of his belief, he made the statement and it states the truth

[Note where these requirements are satisfied, more than one complaint made by a victim may be admissible under this hearsay exception.]

slide24

Maureen is raped by Tom. Maureen goes home and, next morning, tells Olive, her flatmate, that she has been raped by Tom. At the trial, Maureen testifies that, to the best of her belief, she made the statement to Olive and it states the truth. The judge permits Maureen to give evidence of her statement to Olive and permits Olive to give evidence of Maureen’s statement to her.

Which of (i) to (ii) is/are true?

(i) Evidence of the statement to Olive appears to have been properly admitted

(ii) If properly admitted, the statement to Olive is admissible as evidence of the matters stated

They are both true

exculpatory statements made by the accused

Exculpatory statements made by the accused

A wholly exculpatory statement made to the police by the accused may be admissible at common law as evidence of accused’s attitude when it was made (i.e. such statements may make the accused’s evidence more credible) but

a previous consistent statement which is admissible under this common law exception to the rule against previous consistent statements is not admissible as evidence of the matters stated (i.e. this common law exception to the rule against previous consistent statements is not a hearsay exception)

slide26

Jim, being suspected of blackmail, is questioned by the police and totally denies all of the allegations against him. The judge permits the prosecution to adduce evidence of his police statement. At his trial Jim totally denies all of the allegations against him.

Which of (i)-(ii) is/are true?

(i) The evidence should not be admitted because the statement is a hearsay statement.

(ii) The evidence should not be admitted because the statement is a previous consistent statement.

They are both false.

previous consistent statements in civil proceedings

Previous consistent statements in civil proceedings

Previous consistent statements are admissible in civil proceedings under s.6(2) CEA 1995:

to rebut a suggestion of recent fabrication of the witness’ evidence, or

with the leave of the court

Where admissible in civil proceedings they are admitted as evidence of the matters stated (i.e. under a hearsay exception, s.6(5)).

[Note: in civil proceedings a witness statement may be adopted by a witness whilst testifying or treated as his evidence s.6(2) and see CPR 32.5(2).]

slide28

Jim, A pedestrian, is injured when he is hit by a car driven by Freda. Jim tells Alf what happened. At the subsequent civil trial of Jim’s negligence claim against Freda, Freda’s counsel suggests, when Jim is cross-examined, that Jim’s evidence is a recent fabrication.

Which of [a] or [b] is true?

[a] Alf will not be permitted to repeat Jim’s statement because it is a previous consistent statement

[b] If Alf is permitted to repeat Jim’s statement the statement will be admissible as evidence of Jim’s credibility but will not be admissible as evidence of the matters stated

They are both false

unfavourable witnesses

Unfavourable Witnesses

This is a witness who is not hostile to the party calling him but whose evidence is unfavourable to that party (e.g where a prosecution witness has forgotten what he told the police)

Evidence of the bad character of an unfavourable witness may not be adduced by the party who called him in order to discredit him (Criminal Procedure Act 1865, s.3), though other evidence may be adduced to prove the relevant facts which he has failed to prove

[Note: the Criminal Procedure Act 1865 (CPA 1865) applies to criminal and civil proceedings.]

slide30

Audrey, aged 75, who has a previous conviction for shoplifting, sees Joan commit criminal damage. By the time of the trial Audrey, who is extremely forgetful, has forgotten what she saw and gives evidence for the prosecution which is confused and is inconsistent with her police statement. It is not suggested that Audrey is being deliberately unhelpful.

Which of (i)-(ii) is/are true?

(i) The prosecution are entitled to cross-examine Joan concerning her previous conviction

(ii) The prosecution may be entitled to adduce evidence of Joan’s police statement under a statutory hearsay exception

(ii) is true

hostile witnesses

Hostile Witnesses

This is a witness who does not want to tell the truth on behalf of the party who called him (i.e. who deliberately “forgets” the facts or deliberately gives evidence inconsistent with his out of court statement)

In order for a witness to be treated as hostile by the party who called him, the party must obtain the leave of the court

The judge, in the exercise of his discretion whether or not to classify witness as hostile, will take into account factors such as the witness’ demeanour and, where this is the case, his refusal to memory refresh

hostile witnesses continued
Hostile Witnesses (Continued)
  • With the leave of the court, the party who called the hostile witness may cross-examine him in relation to his previous inconsistent statements, asking him leading questions, and, where he denies making it, may prove the previous inconsistent statement (written or oral) (s.3 CPA 1865)
  • Before proving the inconsistent statement “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 a statement” (CPA 1865, s.3)
hostile witnesses continued33

Hostile Witnesses (continued)

The party who called the hostile witness is not entitled to raise his bad character, bias or previous convictions (CPA 1865, s.3)

Even where the witness refuses to testify, the party calling him may still be allowed at common law to cross-examine him on a previous statement

hostile witnesses continued34
Hostile Witnesses (continued)
  • In criminal proceedings, where a hostile witness admits making a previous inconsistent statement, or such a statement is proved under CPA 1865 s.3, the statement is admissible as evidence of matters stated of which his oral evidence would be admissible (i.e. under a hearsay exception) (CJA 2003 s.119(1)).
  • In civil proceedings a previous inconsistent statement, when admissible, is admitted as evidence of the matters stated (i.e. under a hearsay exception) (Civil Evidence Act 1995 s.6(5))
slide35

Sheila, who has several previous convictions, sees her ex-husband, Ken, commit a murder and give the police a statement to this effect. At the trial, Sheila, who has now been reconciled with Ken and intends to re-marry him, gives evidence in chief for the prosecution which is inconsistent with her police statement, and refuses to memory refresh.

Which of (i)-(ii) is/are true?

(i) The prosecution may be permitted to cross-examine Sheila in relation to her police statement, which may be admissible under a statutory hearsay exception

(ii) The prosecution may be permitted to cross-examine Sheila in relation to her previous convictions

(i) is true.

cross examination

CROSS-EXAMINATION

This is examination of a witness by/on behalf of a party other than the party who called him

Thus, a prosecution witness is cross-examined by counsel for the accused and a defence witness is cross-examined by counsel for the prosecution (plus, perhaps, by counsel for a co-accused)

Leading questions may be asked

May cross-examine to undermine the witness’ evidence, to adduce favourable evidence from the witness or to discredit the witness

cross examination cont

CROSS-EXAMINATION (cont)

Cross-examination to discredit a witness is improper if it concerns matters that would only have a slight effect on the witness’ credibility or if the importance of the witness’ evidence and the importance of the imputation are greatly out of proportion

Inadmissible evidence (e.g. hearsay or inadmissible evidence of bad character) remains inadmissible during cross-examination

cross examination cont38

CROSS-EXAMINATION (cont)

In general counsel may not dispute the truthfulness of a witness’ testimony in relation to a matter if he did not cross-examine the witness in relation to the relevant matter (though this does not apply to proceedings before magistrates, does not require counsel to contradict every detail of the witness’ evidence and does not render evidence to the contrary inadmissible (though if such evidence is adduced it may be necessary to permit the witness to be recalled))

cross examination cont39

CROSS-EXAMINATION (cont)

Note: cross-examination of the accused in relation to his bad character will only be permissible subject to CJA 2003 s.101 (see character PowerPoint)

Note: cross-examination of witness’ other than the accused in criminal proceedings in relation to their bad character will only be permissible subject to CJA 2003 s.100 (see character PowerPoint)

slide40

Horace sees Alan steal Wilf’s car. Horace is called as a witness for the prosecution at Alan’s trial at Newtown Crown Court. During cross-examination, defence counsel does not suggest that Horace’s view of the car theft was impeded in any way. The defence intend to call Joan to testify that at the time when the car was stolen Horace was inside a bus shelter and could not possibly have witnessed the theft of the car.

True/false?

The defence should have raised this matterwhen they cross-examined Horace

True

collateral matters continued

Collateral Matters (continued)

Essentially, a matter is not collateral if it is so connected to an issue in the proceedings that the cross-examining party would be entitled to call evidence to prove it.

The question whether a matter is collateral is one of mixed fact and law for the trial judge who will take into account the necessity, if possible, of not involving the jury in a multiplicity of distracting issues, and must determine whether admitting the evidence in question is in the interests of justice (the judge should achieve fairness and ensure that the jury focus on the real issues and don’t have their attention distracted)

collateral matters

Collateral Matters

These are matters which are merely relevant to credibility of the witness who is being cross-examined and which are not relevant to an issue in the proceedings

The rule of finality is that where a party cross-examines a witness in relation to a collateral matter, the party cannot adduce evidence in rebuttal of the witness’ answers

collateral matters continued43
Collateral Matters (Continued)
  • The distinction between collateral matters and those concerning issues may be difficult to draw in the context of a sexual offence count where the complainant’s credibility often forms a central issue (i.e. where at times if the complainant is not credible the prosecution case will be fundamentally flawed)
collateral matters continued44
Collateral Matters (Continued)
  • E.g. in circumstances in which the complainant alleges sexual assault, the case essentially rests on “her word against his”, the defence allege that the complainant has made other false sexual offence complaints in the past and the complainant denies that she has made any other complaints, evidence in rebuttal appears to be admissible, the matter not being collateral,(but the position appears to be different where the complainant admits making the other complaints but denies that they were false, as admitting evidence in rebuttal in such circumstances could require the jury to embark on a lengthy exploration of irrelevant and peripheral issues)
slide45

Dan is charged with raping Collette. Dan’s counsel cross-examines Collette concerning allegedly false rape allegations that Collette previously made against Alf and Ben. Collette admits making allegations against Alf but denies that they were false. Collette denies making allegations against Ben.

Which of (i)-(ii) is/are true

(i) The judge must admit defence evidence to prove that the rape allegations against Alf were false

(ii) The judge must not admit defence evidence to prove that Collette made rape allegations against Ben

They are both false

exceptions to the rule of finality
Exceptions to the rule of finality
  • The rule of finality is subject to the following exceptions, under which evidence in rebuttal of a witness’ answers given during cross-examination on a collateral matter is admissible
    • where witness denies an allegation of bias or partiality raised during cross-examination, or
    • where witness (having been lawfully questioned about them) denies his previous convictions (s.6 Criminal Procedure Act 1865 (which also applies to civil proceedings), or
exceptions to the rule of finality cont
Exceptions to the rule of finality (cont)
  • where physical or mental problems (e.g bad eyesight or mental illness) may make the witness unable to give reliable evidence or substantially impair his ability so to do
slide48

Kay gives evidence for the prosecution at the trial of Victor for assaulting Alan. During cross-examination, Victor’s counsel suggests to Kay that she is biased against Victor because Victor left Sue, his wife, who is Kay’s sister, for another woman. Kay denies that she is biased against Victor and Victor’s counsel wishes to adduce evidence of statements made by Kay to defence witnesses revealing her malice towards Victor.

Which of (i)-(ii) is/are true

(i) The matter appears to be a collateral matter

(ii) The evidence appears to be admissible in rebuttal of Kay’s denial of bias against Victor.

They are both true.

slide49

Jim is charged with murdering Khalid. Les is called as a prosecution witness and, during cross-examination, with the leave of the court, it is put to him, for the purpose of discrediting his testimony, that he has two previous convictions for perjury, but he denies having any convictions.

Which of (i)-(ii) is/are true?

(i) The matter is collateral

(ii) The defence are entitled to adduce evidence to prove that Les has the perjury convictions

They are both true

slide50

Arun, who is mentally ill, is a key witness for the prosecution in a murder trial. The defence wish to adduce evidence to prove that the nature of Arun’s mental illness is such that he frequently finds it difficult to differentiate fantasy from reality and is extremely suggestible.

Which of (i) - (ii) is/are true?

(i) The matter is collateral

(ii) The judge must not admit this evidence because a party to criminal proceedings is never entitled to adduce expert evidence to impugn the credibility of a witness

(i) is true

cross examination in relation to previous inconsistent statements

Cross-examination in relation to previous inconsistent statements

A previous inconsistent statement is a previous oral or written statement made by a witness which is inconsistent with his present testimony

Where relevant either to an issue in the proceedings or to the credibility of a witness, the common law permits the cross-examination of the witness in relation to a previous inconsistent statement

If the witness admits making it, no further evidence of the statement is admissible

cross examination on previous inconsistent statements continued
Cross-examination on previous inconsistent statements continued
  • If the witness does not admit making it, the statement may be proved under (s. 4 CPA 1865 but only if the statement is:

“relative to the subject-matter of the indictment or proceeding” (which essentially appears to be a matter of judicial discretion) and

  • “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 a statement”
previous inconsistent statements in writing

Previous inconsistent statements in writing

If the previous inconsistent statement was made in or reduced into writing, the witness’s must be shown the relevant parts before it is put in evidence to contradict him and the witness must be given a chance to explain them (s. 5 CPA 1865)

If it is not intended to put the statement in evidence to contradict the witness and it is “relative to the subject matter of the indictment or proceeding” then it is not necessary to show the witness the statement before cross-examining him on it, but the judge is entitled to inspect the document and to put it in evidence if he thinks fit (s. 5 CPA 1865)

previous inconsistent statements cont

Previous inconsistent statements (cont)

In criminal proceedings, where a witness admits making a previous inconsistent statement, or such a statement is proved under CPA 1865 ss.4 or 5, the statement is admissible as evidence of matters stated of which his oral evidence would be admissible (i.e. under a hearsay exception) (CJA 2003, s.119(1)).

In civil proceedings a previous inconsistent statement, when admissible, is admissible as evidence of the matters stated (i.e. under a hearsay exception) (Civil Evidence Act 1995, s.6(5))

slide55

D is charged with raping C. When giving evidence in chief for the prosecution, C testifies that she had never had sexual intercourse with D prior to the occasion of the alleged rape. Prior to that occasion, C had told A that she was having regular sexual intercourse with D. Moreover, C had also made a similar statement in a letter which to J.

Which of (i)-(ii) is/are true?

(i) If C denies making the statement to A it may be proved and admitted as evidence of the matters stated

(ii) If C is cross-examined in relation to her letter to J C must be shown the relevant part of the letter before it is put in evidence to contradict her

They are both true

cross examination of a sexual offence complainant by the accused in person yj cea 1999 s 34

Cross-examination of a sexual offence complainant by the accused in person (YJ&CEA 1999 s 34)

A person accused of a sexual offence cannot personally cross-examine the complainant in relation to any offence

cross examination of a protected witness by the accused in person yj cea 1999 s 35

Cross-examination of a protected witness by the accused in person (YJ&CEA 1999 s 35)

The accused cannot personally cross-examine a “protected witness” in relation to any offence.

A protected witness is a child who is the complainant or a witness in relation to various sexual offences, kidnapping, offences involving an assault, injury or threat of injury etc

Depending on the offence a child may be someone under 17 (e.g. rape, sexual assault etc) or someone under 14 (e.g. kidnapping or an offence involving an assault, injury or threat of injury)

cross examination of other witnesses by the accused in person yj cea 1999 s 36

Cross-examination of other witnesses by the accused in person (YJ&CEA 1999 s 36)

Where neither s.34 nor s.35 apply the Court (on application by the prosecution or of its own motion) has discretion to prevent cross-examination of a witness by the accused where:

cross-examination (or further cross-examination) in person is likely to diminish the quality of her evidence, andprohibiting the accused from so doing would be likely to improve the quality of the evidence; and it would not be contrary to the interests of justice to so direct. [For procedure re making prosecution applications under s.36 see s.37 and CrimPR Part 31).]

legal representation where the accused is prevented from personally cross examining a witness s 38

Legal representation where the accused is prevented from personally cross-examining a witness (s.38)

Accused is invited to obtain a legal representative

If accused refuses or fails to obtain a legal representative the court must appoint a qualified legal representative (who is not responsible to the accused) to cross-examine the witness in the accused’s interests if this is necessary in the interests of justice

warnings to the jury where the accused is prevented from personally cross examining a witness s 39
Warnings to the jurywhere the accused is prevented from personally cross-examining a witness (s.39)
  • Where necessary, judge must warn jury such that accused is not prejudiced either by the drawing of inferences from the fact that he was not allowed to cross-examine in person or because cross-examination was conducted by a qualified legal representative
human rights

Human Rights

Potential violation of Article 6 to prevent accused from cross-examining prosecution witness.

There does not appear to be an absolute right to cross-examine in person

It may be that there will be a violation if cross-examination by a qualified legal representative is manifestly ineffective

slide62

D is charged with the rape of C, the offence having allegedly taken place in the presence of S, C’s 8 year old daughter and that of M, C’s mentally ill 20 year old sister, both of whom D tied up and forced to watch the rape. At the trial D, who is representing himself, wishes to personally cross-examine C, S and M.

Which of (i)-(iii) is/are true?

(i) D is entitled to personally cross-examine C

(ii) D is entitled to personally cross-examine S

(iii) D is entitled to personally cross-examine M

They are all false

cross examination concerning the sexual behaviour of sexual offence complainants yj cea 1999 s 41

Cross-examination concerning the sexual behaviour of sexual offence complainants (YJ&CEA 1999 s.41)

The leave of the court is required for the defence to adduce evidence or ask questions during cross-examination concerning a sexual offence complainant’s sexual behaviour and this includes sexual behaviour with the accused himself (s.42) [For procedure re s.41 applications see s.43 and CrimPR Part 36.]

The effect of the s.42 definition of “sexual behaviour” is that leave is not required for the defence to adduce evidence/cross-examine the complainant concerning the alleged facts of the alleged offence

cross examination concerning the sexual behaviour of sexual offence complainants continued

Cross-examination concerning the sexual behaviour of sexual offence complainants continued

The prosecution do not require leave to adduce evidence of the complainant’s sexual behaviour

A question/evidence does not concern sexual behaviour if it concerns false complaints made in the past, provided that there is an evidential basis for suggesting that the complainant has made false complaints in the past

It seems that s.41 requires the court to make a judgment and that where evidence is properly admissible under s.41 the court does not possess discretion either to exclude it or to limit its nature

cross examination concerning the sexual behaviour of sexual offence complainants continued65

Cross-examination concerning the sexual behaviour of sexual offence complainants continued

Leave may only be given under s.41 if:

refusing to give it might render unsafe a conclusion of the jury in relation to a relevant issue

and

the evidence or question falls within one of five specified “gateways” (considered below)

cross examination concerning the sexual behaviour of sexual offence complainants continued66

Cross-examination concerning the sexual behaviour of sexual offence complainants continued

Other than in one exceptional case (see below) leave should not be given where the main purpose of the evidence or question is to discredit the complainant (though in practice there may be a close relationship between C’s credibility and D’s guilt and the mere fact that cross-examination re sexual behaviour impugns credibility does not mean that that is its main purpose)

cross examination concerning the sexual behaviour of sexual offence complainants continued67

Cross-examination concerning the sexual behaviour of sexual offence complainants continued

Leave should only be given in relation to evidence or questions concerning specific instances of sexual behaviour (i.e. it appears that leave should not be given merely to permit the defence to establish that the complainant was a prostitute)

the five gateways via which leave may be given under s 41

The five “gateways” via which leave may be given under s.41

Under s.41, leave may be given to adduce evidence of the complainant’s sexual behaviour or to cross-examine the complainant about it where:

The evidence/questions relate to an issue other than consent (e.g. whether the event took place or belief in consent); or

the five gateways via which leave may be given under s 41 cont

The five “gateways” via which leave may be given under s.41 (cont)

The evidence/questions relate to an issue of consent and the sexual behaviour allegedly took place at or about the same time as the event which forms the basis of the charge (“at or about the same time” appears to be capable of encompassing hours or even days but not weeks, though its application appears to be a question of fact and degree for the judge); or

the five gateways via which leave may be given under s 41 cont70

The five “gateways” via which leave may be given under s.41 (cont)

The evidence/questions relate to an issue of consent and the sexual behaviour is allegedly in some respect so similar to sexual behaviour of the complainant’s which formed part of the event to which the charge relates that the similarity cannot reasonably be explained as coincidental; or

the five gateways via which leave may be given under s 41 cont71

The five “gateways” via which leave may be given under s.41 (cont)

The evidence/questions relate to an issue of consent and the sexual behaviour is allegedly in some respect so similar to the complainant’s sexual behaviour at or about the time of the event that the similarity cannot reasonably be explained as coincidental; or

the five gateways via which leave may be given under s 41 cont72
The five “gateways” via which leave may be given under s.41 (cont)
  • The evidence/questions are necessary to enable the accused to rebut or explain prosecution evidence concerning the complainant’s sexual behaviour (including sexual behaviour which took place as part of the event to which the charge relates)
  • [Note: under this “gateway” the purpose of evidence/questions may be that of discrediting the complainant]
human rights73

Human Rights

It appears that if excluding evidence/questions under section 41 would prevent the accused from having a fair trial for the purposes of Article 6, the section should, under section 3 of the Human Rights Act 1998, be “read down” so as to admit the evidence/ permit the questions.

A narrow interpretation of the concept of credibility may be required in order to render the operation of s.41 Article 6 friendly

slide74

D is charged with the rape of C. D wishes to have C cross-examined concerning: the facts of the alleged rape; C’s sexual behaviour with D’s brother A shortly before the time when the alleged rape allegedly took place; a long term sexual relationship between C, D and A; and C’s promiscuity.

Which of (i)-(ii) is/are true?

(i) The leave of the court will be required if C is to be cross-examined concerning her sexual behaviour with A and the sexual relationship between C, D and A

(ii) The leave of the court will not be required if C is to be cross-examined concerning the facts of the alleged rape and her promiscuity

(i) is correct

re examination

RE-EXAMINATION

This is again conducted by/on behalf of the party who called the witness

Thus, a prosecution witness is re-examined by counsel for the prosecution and a defence witness is re-examined by counsel for the accused who called the witness.

Leading questions should not be asked

Memory refreshing may take place

Leave may be given to treat a witness as hostile

Rule against previous consistent statements and its exceptions are applicable

re examination cont

RE-EXAMINATION (cont)

(Other than with the leave of the court) re-examination should only relate to matters raised during cross-examination

slide77

Colin is charged with murder. The prosecution call Vince. Vince is examined in chief and cross-examined by the defence and then, during re-examination, counsel for the prosecution wishes to ask Vince leading questions about matters that had not been raised with Vince up to that time.

Which of (i)-(ii) is/are true?

(i) Leading questions should not normally be asked during re-examination

(ii) New matters should not normally be raised during re-examination

They are both true.

special measures directions yj cea 1999

SPECIAL MEASURES DIRECTIONS (YJ&CEA 1999)

Special measures are available in criminal proceedings (s.18) if

The witness is an eligible witness and

The court has received the requisite notification from the Home Secretary permitting the implementation of the relevant special measure(s) in the context of witnesses and proceedings of the relevant type in the area where the proceedings will take place

eligible witness

Eligible witness

A witness is eligible for assistance if

under 17 when the court is required to decide whether to make the direction (a child witness) (s.16), or

if the quality of the witness’ evidence is likely to be diminished in consequence of incapacity (physical or mental) (s.16), or

if the quality of the witness’ evidence is likely to be diminished in consequence of fear or distress about testifying (sexual offence complainants are automatically eligible unless they do not wish to be eligible) (s.17)

the accused

The Accused

The accused cannot be an eligible witness (s.16, s.17).

[Note: the court does possess common law powers to ensure that the accused has a fair trial and thus may be able to apply similar or equivalent measures to the accused.]

when should the court give a special measures direction in relation to an eligible witness s 19

When should the court give a special measures direction in relation to an eligible witness (s.19)?

A party may apply for a special measures direction or the court may raise the issue [Procedure CrimPR Part 29]

If special measure(s) would be likely to improve the quality of the witness’ evidence then

the court should direct that the measure(s) which, in the court’s opinion, would be likely to maximise so far as practicable the quality of the witness’ evidence, be applied to the witness’ evidence

improving or maximising the quality of evidence s 19
Improving or maximising the quality of evidence (s.19)
  • In determining whether special measure(s) would be likely to improve or maximise so far as practicable the quality of evidence the court must consider all the circumstances including the witness’ views and whether the measure(s) might inhibit the effective testing of the evidence by a party
reasons and variation s 20
Reasons and variation (s.20)
  • Reasons should be given for giving or refusing to give a special measures direction.
  • A special measures direction may be discharged or varied in the interests of justice [procedure CrimPR Part 29].
child witnesses s 21

Child witnesses (s.21)

Under 17 when court determines whether special measures likely to improve quality of W’s evidence

The “primary rule” applies, i.e.:

W’s evidence in chief will be by video recorded interview and

cross-examination/re-examination of W by live link unless court directs video recording thereof.

Court will not direct admission of video recorded interview if not in interests of justice (s.21, s.27) and will not apply primary rule if it would not be likely to maximise so far as practicable the quality of W’s evidence

witnesses who are under 17 when the direction is made but are 17 by the time of the trial s 21

Witnesses who are under 17 when the direction is made but are 17 by the time of the trial (s.21)

If the witness starts to give evidence before he is 17 the direction remains in effect

If the witness is 17 when he starts to give evidence the direction ceases to have effect except that it remains in effect to the extent to which it provides for video recorded examination in chief/cross-examination/re-examination

child witnesses in need of special protection s 21

Child witnesses in need of special protection (s.21)

These are child witness in the context of proceedings for sexual offences, kidnapping, offences involving an assault, injury or threat of injury etc

The “primary rule” applies even though complying with it would not be likely to maximise the quality of the witness’s evidence so far as practicable and

In the case of certain offences (e.g. as rape and sexual assault) if examination in chief is to be video recorded, cross-examination and re-examination must also be video recorded unless the witness does not so desire.

qualifying witnesses s 22

Qualifying Witnesses (s.22)

This is a witness who was under 17 when he gave video recorded interviews to be used as evidence in chief but was not an eligible witness by the time when the court was required to consider whether to make a special measures direction.

In relation to the making of a special measures direction concerning the admission of the video recording, the “primary rule” and its exceptions apply to such a witness as they do to a child witness

qualifying witnesses in need of special protection s 22

Qualifying witnesses in need of special protection (s.22)

These are qualifying witnesses in the context of proceedings for sexual offences, kidnapping, offences involving an assault, injury or threat of injury etc

The position in relation to the making of special measures directions concerning the admission of video recorded evidence in chief equates with that of a child witness in need of special protection

In the case of offences such as rape and sexual assault, the position in relation to video recording of cross-examination and re-examination also equates with that of child witness in need of special protection

the special measures

The special measures

Screening of W so W can’t see accused (s.23);

Giving evidence by T.V. live link (s.24);

Evidence in private (i.e. exclusion of persons/classes of person from court) (s.25)

Removal of wigs and gowns (s.26);

Admission of a video recorded interview as evidence in chief (the video should not be admitted if its admission not in interests of justice, the interests of justice not just including those of the accused) (s.27) (the witness’ competence may arise and the judge may have to keep it under review if he admits the video);

the special measures continued

The special measures (continued)

Video recorded cross-examination and re-examination (court may only so direct if a video recording is to be admitted as evidence in chief) (s.28) (s.28 not yet in force)

Examination through an intermediary (e.g. sign language interpreter) (s.29); and

Provision of communication aids (s.30)

[For procedure re special measures see CrimPR Part 29].

statements not made in court s 31

Statements not made in court (s.31)

Where admitted under special measures directions (i.e. video recorded evidence), these are admissible as evidence of facts of which W’s direct oral evidence in court would be admissible (e.g. if W’s direct oral evidence would have been admissible then the statement will be admissible but if W’s direct oral evidence would be inadmissible hearsay then the statement will be inadmissible hearsay)

Cannot corroborate W’s other evidence

Weight is to be assessed in the light of all circumstances from which an inference can reasonably be drawn

where special measures are applied during trial on indictment s 32

Where special measures are applied during trial on indictment (s.32)

The judge should give the jury such warning as is necessary to prevent the accused being prejudiced by virtue of the fact that the direction was given in relation to the witness

human rights93

Human Rights

In general the operation of the special measures regime does not appear to violate Article 6

Could the application of special measures direction to prosecution witness ever violate the principle of equality of arms (i.e. where the accused could also have benefited from the application of such measures to him, had this been permissible)? [In practice, it appears that rather than discharging or varying a special measures direction in such circumstances, it is better to apply similar or equivalent measures to the accused in the exercise of the court’s common law powers.]

slide94

D is charged with raping C, the offence having allegedly taken place in the presence of S, C’s 8 year old daughter and that of M, C’s mentally ill 20 year old sister, both of whom D tied up and forced to watch the rape. The judge is considering making special measures directions relation to D, C, S and M.

Which of (i)-(iii) is/are true?

(i) D is not eligible for a special measures direction

(ii) C is not eligible for a special measures direction

(iii) S is not eligible for a special measures direction

(iv) M is not eligible for a special measures direction

(i) is true

live tv link under cja 1988 s 32 witnesses outside uk

Live TV Link under CJA 1988, s. 32 (witnesses outside UK)

Permits TV live link in respect of evidence of witnesses outside the UK, but only with the leave of the court and only in relation to a narrow range of offences (e.g. murder and manslaughter)

slide96

Alfred, an American tourist, witnesses a murder. By the time of the trial Alfred lives in the USA and whilst he is willing to assist the prosecution is unwilling, due to business commitments, to return to the United Kingdom to give evidence in court.

Which of (i)-(ii) is/are true?

(i) The fact that Alfred is overseas means that he is eligible for a special measures direction under which that he can give his evidence in chief via a video recorded interview

(ii) Alfred may be able to testify from the USA via video link

(ii) is true

civil procedure rules 1998 cpr part 32

Civil Procedure Rules 1998 (CPR Part 32)

Witness statements normally stand as evidence in chief

Expert evidence given by expert report unless court directs otherwise

Court may permit evidence to be given by given by video link or other means

slide98

C is bringing a negligence claim against D. C’s witnesses are W, who saw the events which the claim concerns, and E, an expert. C intends to rely upon W’s witness statement as W’s evidence in chief and on E’s written report as his expert evidence. C wishes cross-examination of W, who is too ill to attend court, to be conducted via a video link.

Which of (i)-(iii) is/are true?

(i) W must give oral evidence in chief as his witness statement will be hearsay

(ii) W must attend for cross-examination

(iii) E must give oral evidence as his written report will be hearsay

They are all false