(Trinidad and Tobago) The Board considered the admissibility of out of court admissions as against co-defendants. Three defendants faced allegations of a series of violent crimes. The appellant said the only evidence against him for an offence of buggery was the statement of his co-defendant. The defendants were charged with different offences.
Held: The admission should not have been used and the appeal succeeded. There was in any event no jurisdiction to order a whipping for the offence.

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2007] UKPC 51, Times 07-Aug-2007
Bailii
England and Wales
Citing:
Cited – Regina v Spinks CACD 1982
Spinks was charged under section 4(1) of the 1967 Act, in that knowing or believing that a Mr Fairey had committed an arrestable offence, he acted with intent to impede his apprehension or prosecution. To prove that Fairey had committed an . .
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Kumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 29 December 2021; Ref: scu.258434

Court of Appeal of New Zealand – the defendant appealed against his conviction (after two trials) for rape and murder. He said that hos confession should not have been admitted, being unreliable, and that evidence should have been admitted that another man had already been convicted of a rape on the woman on the same occasion. A psychiatrist had given expert evidence as to its reliability but had gone beyind that to say that it was unreliable.
Held: The expert witness had exceeded his power. It remained for the fact finding cort to reach such conclusions. That remained the case notwithstanding the Evidence Act 2006 of New Zealand. That Act had not operated to displaced the common law rule that forbade evidence being given as to the ultimate issue.
‘It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.’

Lord Kerr, Dame Sian Elias, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKPC 9
Bailii
England and Wales
Cited by:
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 28 December 2021; Ref: scu.543787

The defendant appealed against his conviction after the judge had admitted evidence, judging it proper to admit the evidence in the light of the section which was not yet in force. The complainant was an elderly lady suffering from Alzheimer’s, the allegation was of rape, and it was sought to admit her video evidence.
Held: The judge had applied the test of incapacity from the section, namely that a person was not competent to give evidence in criminal proceedings if it appeared to the court that he was not a person who was able to understand the questions put to him as a witness and give answers to them which could be understood. That test was the correct test, even if the section was not yet in force.
Complainant with Alzheimer’s disease – competence as a witness -admissibility of video testimony

Lord Justice Waller, Mr Justice Pitchers and Judge Crawford, QC
Times 21-May-2002, Gazette 07-Jun-2002
Youth Justice and Criminal Evidence Act 1999 53(3)
England and Wales

Criminal Evidence

Updated: 23 December 2021; Ref: scu.171199

The defendant appealed a conviction for the attempted murder of his wife. It had been said that he had killed her, then set fire to the house. She gave evidence in his defence, but certain parts of her evidence were excluded. She had suffered retrograde amnesia, and had sought counselling help to recover her memory. The defendant said the evidence of her flashbacks should have been admitted, and sought to have further evidence admitted on appeal.
Held: The 1968 Act required new evidence on appeal to establish that evidence could not have been put forward at the trial. Although elements could, the evidence now available was greater in extent than was available at trial. However the further evidence was better explained by her inability to consider the possibility of her husband’s guilt. It was neither necessary nor expedient in the interests of justice to admit the evidence from the victim.

Lord Justice Kay Mr Justice Mackay And The Recorder Of Chester
[2002] EWCA Crim 18
Bailii
Criminal Appeal Act 1968 23
England and Wales

Criminal Evidence

Updated: 23 December 2021; Ref: scu.167987

Appeal under s.58 of the Criminal Justice Act 2003 in respect of a terminating ruling made by Mr Recorder Day QC at the Crown Court at Blackfriars on 5 May 2015 holding that in a prosecution case based on DNA, there was no case to answer.

John Thomas LJC, Simon LJ, Patterson J
[2015] EWCA Crim 1732
Bailii
Criminal Justice Act 2003 58
England and Wales

Criminal Evidence

Updated: 23 December 2021; Ref: scu.554251

‘The focus of the application is on the judge’s ruling on whether to give a direction under section 34 of the Criminal Justice and Public Order Act 1994 (‘a section 34 direction’) in relation to the applicant’s failure to mention in interview that the complainant ‘AB’ had fallen asleep in his car and that he had attempted to awaken her.’

Lady Justice Macur DBE,
Lady Justice Carr DBE,
Mr Justice Murray
[2021] EWCA Crim 1767
Bailii
Criminal Justice and Public Order Act 1994 34
England and Wales

Criminal Evidence

Updated: 23 December 2021; Ref: scu.670359

The defendants appealed against their convictions for murder. Evidence had been admitted as to the identification of a car from a memory of the registration mark by a witness.
Held: The evidence was properly admitted without a Turnbull direction: ‘ No recognised basis exists for suggesting that this type of evidence needs to be approached with special caution: it has not been established that the introduction of evidence of this kind in the past has caused particular injustice or that witnesses mistaken as to this kind of detail can also be convincing in a special way that calls for a Turnbull type direction. A witness who gives evidence of the details of a number plate is performing exactly the same role as a witness who, for instance, describes the number of punches delivered during a fight, whether traffic lights were green or red before a collision, or whether there were four or five masked men present during an armed robbery.’

Hooper LJ, Aikens, Fulford JJ
[2004] EWCA Crim 2139
Bailii
Citing:
Dsitinguished – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .

Cited by:
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 22 December 2021; Ref: scu.537583

[1995] 2 Cr App R 554
England and Wales
Cited by:
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 18 December 2021; Ref: scu.242109

Background evidence is admissible ‘Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.
If background evidence shows the accused in a particularly bad light, this may be a factor to be taken into account in deciding whether it would be excluded in the discretion of the court on the ground that the prejudicial effect of the evidence outweighs it probative value. A court will not readily interfere with a trial judge’s decision on discretion.’

Purchas LJ
Unreported, 2 May 1985
England and Wales
Cited by:
Cited – Regina v M and Others CACD 2-Sep-1999
Evidence of the proper background to the offence was normally admissible, even if this revealed previous offences by the defendant, and despite the fact that such offences might not be admissible on a similar fact basis. Where the jury could not . .
Approved – Regina v Sidhu CACD 22-Feb-1993
The defendant was accused of explosives offences relating to his promotion of the cause of Sikhism through membership of the Khalistan Liberation Force, which promoted an independent Sikh state. The jury considered a video recording of the appellant . .
Cited – Regina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
Cited – Osbourne, Regina v CACD 13-Mar-2007
The defendant appealed his conviction for murder. He complained at the admission of a statement made by the police surgeon who had attended him in the police station as evidence of bad character under the 2003 Act. The statement was as to his . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 11 December 2021; Ref: scu.183206

The appellant challenged the use made of the opinion of counsellors as to the truth or otherwise of the complainants allegng sexual offences. The statements had been obtained under treatment including hypnotherapy. A defence expert had said that there was a risk of false memory arising because hypnotherapy cannot make a person remember what he or she did not remember before, but that evidence had been excluded.
Held: The judge was correct to reject the application to rule A’s evidence inadmissible. The police were not responsible for the counselling sessions and ultimately it was for the jury to assess her credibility in the light of all the evidence that it had heard.

Gage LJ, Nelson J, Sir John Alliott
[2006] EWCA Crim 231
Bailii
olice and Criminal Evidence Act 1984 78
England and Wales
Cited by:
Cited – C v Regina CACD 6-Jul-2012
The issue in this appeal relates to the admission of evidence of witnesses, identified in her directions by the judge as expert witnesses, who gave evidence as to the impression they had formed as to the truth of complaints made to them by an . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 11 December 2021; Ref: scu.428551

The fact that the reputation of a forensic expert on whose evidence a conviction was based had been undermined would not always mean that the conviction would be overturned. Though the Crown conceded in this case that the conviction was now unsafe, ‘it does not necessarily follow from these criticisms that every case resulting in a conviction in which Dr Heath gave evidence for the Crown should or will be treated as unsafe. We expect the Crown to do what the Crown has done here, which is to analyse the precise nature and importance of Dr Heath’s evidence to the conviction in the light of the particular circumstances of the individual case and the issues which arose at trial. Even if Dr Heath’s evidence was challenged at trial, it does not follow that the convictions will all be unsafe. Some will remain safe, even if his evidence lent support to the Crown’s case’

Sir Igor Judge P Qbd, Forbes, Treacy Jj
[2006] EWCA Crim 3222
Bailii
England and Wales
Cited by:
Cited – Noye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 11 December 2021; Ref: scu.428553

Defendants appealed against their convictions for murder, saying that the judge had admitted hearsay evidence of a witness in the absence of evidence that the witness did not have capacity to give evidence.

Pitchford LJ, Davies DBE J, Rees Rec
[2014] EWCA Crim 1243
Bailii
Criminal Evidence Act 2003 16(2)(b)
England and Wales

Criminal Evidence

Updated: 05 December 2021; Ref: scu.526966

Five defendants appealed against their convictions after the admission of hearsay evidence.
Held: The court re-iterated that the importance of the hearsay evidence to the case remained a vital consideration when deciding upon its admissibility, but there was no overarching rule that ‘sole or decisive’ evidence was inadmissible.
Hughes LJ VP set out the principles underlying the domestic jurisprudence: ‘As everybody knows, the Criminal Justice Act 2003 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previous was, this does not make it the same as first hand evidence. It is not. It is necessarily second hand and for that reason very often second best. Because it is second hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness’s interview, that person cannot be asked a single exploratory or challenging question about what it said. From the point of view of a defendant, the loss of the ability to confront one’s accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interest of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe.’

Hughes LJ VP, Dobbs, Globe JJ
[2012] EWCA Crim 1509, [2013] Crim LR 60, [2013] 1 Cr App R 2, [2013] 1 WLR 2592, [2013] 1 All ER 349
Bailii
Criminal Justice Act 2003
England and Wales
Citing:
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .

Cited by:
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – Taylor v Regina CACD 20-Dec-2013
The defendant appealed against his conviction, for sex offences some 33 years earlier, saying that the convictions had been unfairly obtained. Evidence had been available since 1980, but a decision not to prosecute had been taken.
Held: ‘the . .
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .
Cited – Morgan v Director of Public Prosecutions Admn 6-Dec-2016
Res Gestae Evidence correctly admitted
The appellant challenged by case stated the admission by magistrates at his trial of two pieces of evidence under the res gestae principle under section 118(3) of the 2003 Act. The allegation was one of domestic violence. The court had admitted the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 04 December 2021; Ref: scu.464663

British Virgin Islands. The defendant appealed against his conviction for murder, challenging the use made of his identification by the victim before his death. He said that the court had not directed the jury as to the effect of inconsistencies in that evidence.
Held: The appeal failed. The court had fallen into error in its treatment of hearsay evidence, in not pointing out inconsistencies in the decease’s evidence and the significance of the defendant having been unable to test it. Also the court had not given the jury appropriate direction as to the evidence that the deceased’s use of language left the identification ambiguous. However, the mistakes were not sufficient to leave the conviction unsafe: ‘the irregularities of treatment of the hearsay evidence could not, on the facts of this case, have led the jury to convict when they would not have done so if accurately directed.’

Lady Hale, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2014] UKPC 14
Bailii
Commonwealth

Criminal Evidence

Updated: 03 December 2021; Ref: scu.525610

The defendant appealed against his conviction for sexual assault on his child niece. He said that he had not been allowed to put to her allegations that she had made other, and false allegations against boys.
Held: The appeal failed: ‘although, essentially, Miss Bache was pursuing a bad character application, out of an excess of caution he would also treat it as an application under s. 41 of the 1999 Act, particularly given the age of the young witnesses. He considered, however, that there was no evidence that the complainant had lied about being sexually active and that, in any event, the girls may have been discussing low level sexual contact and not sexual intercourse. He concluded that the girls’ discussions about prior sexual activity of unknown origin and truth could not impact upon whether C had lied about the specific allegations of sexual abuse made against the appellant. ‘

Sir Brian Leveson P QBD, Keith, Lang JJ
[2014] EWCA Crim 618
Bailii
Criminal Justice Act 2003 100, Youth Justice and Criminal Justice Act 1999 41
England and Wales

Criminal Evidence

Updated: 02 December 2021; Ref: scu.523430

Appeal against conviction on the ground that the trial judge wrongly excluded certain evidence. The appellant has in the past been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (‘ADHD’). The issue in this appeal is whether the judge should have admitted expert evidence concerning the effects of that condition.

Jackson LJ, Simon J, Sir Colin MacKay
[2014] EWCA Crim 121
Bailii
England and Wales

Criminal Evidence

Updated: 01 December 2021; Ref: scu.522312

The Court refused to admit evidence of ‘case linkage analysis’ because it was the subject of only relatively recent academic research and a methodology which was not yet sufficiently developed that it could be treated as reliable.

Lord Menzies
[2013] ScotHC HCJAC – 145, [2013] HCJAC 145, 2013 GWD 39-748, 2014 SLT 21, 2014 SCCR 78, 2014 SCL 98
Bailii
Scotland
Cited by:
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 27 November 2021; Ref: scu.519307

Whether a witness statement, apparently signed by the appellant, which actually had the effect of undermining his alibi should have been excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984, by reason of the manner by which it was obtained and/or its adverse effect upon the fairness of the proceedings. If so, is the conviction unsafe?

[2014] EWCA Crim 2216
Bailii
England and Wales

Criminal Evidence

Updated: 22 November 2021; Ref: scu.539451

The defendant appealed against his conviction saying that evidence of an ear-print expert had been wrongly admitted.
Held: The court rejected an argument based on Coutts. Ear-print evidence can be admitted provided the experts were appropriately experienced and the sample was sufficient. In this case the sample used was insufficient.

Lord Justice Latham, Mrs Justice Swift and Mr Justice Foskett
[2008] EWCA Crim 975, Times 16-May-2008
Bailii
England and Wales
Citing:
Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Cited – Regina v Dallagher CACD 25-Jul-2002
The prosecution sought to bring into evidence an ear print. The defendant appealed.
Held: The science of identifying ear prints remained under development, but there was nothing to stop it being admitted where appropriately cautious directions . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 20 November 2021; Ref: scu.267554

Circumstances in which reference may be made or evidence called as to the good character of a prosecution witness.

[2018] EWCA Crim 2454
Bailii
England and Wales

Criminal Evidence

Updated: 18 November 2021; Ref: scu.630975

The defendant had been charged for burglary on the basis, solely, of DNA evidence found on a scarf. The scarf was accidentally destroyed before the trial, and the defence had been unable to have it examined. He now appealed saying that the use of DNA evidence only should not be enough to justify a conviction.
Held: There was no case that could properly have been left to the jury. Therefore the conviction has to be quashed.

Elias LJ, MacKay J, Sir Roderick Evans
[2013] EWCA Crim 1294
Bailii
England and Wales
Citing:
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Regina v Doheny, Adams CACD 31-Jul-1996
The court set out the procedure for the introduction of DNA evidence in criminal trials. In particular the court explained the ‘Prosecutor’s Fallacy’ when using statistical evidence. The significance of the DNA evidence will depend critically upon . .
Cited – Lashley, Regina v CACD 8-Feb-2000
The sole evidence against an appellant was DNA found on a cigarette left at the scene of the crime. It was accepted that there would be between seven and ten males in the United Kingdom to whom this profile related. There was no other evidence . .
Cited – Regina v Grant CACD 18-Jul-2008
The defendant appealed against his convictions for robbery. The sole evidence was the presence of DNA evidence drawn from a balacava left at the scene. There was a probability of a one in a billion that it was DNA matching someone other than the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 17 November 2021; Ref: scu.513521

This appeal concerns the disputed admission, at a trial of the appellant for murder of his long-term partner, effectively his wife, of the evidence of his former girlfriend, Rosie Thorne, concerning their relationship some 20 years or so earlier. In the terms of the Criminal Justice Act 2003, this evidence was admitted as bad character constituting ‘important explanatory evidence’ (section 101(1)(c)), that is to say evidence such that ‘without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case’ and whose ‘value for understanding the case as a whole is substantial’

Lord Justice Rix
[2008] EWCA Crim 1156, [2009] 2 Cr App Rep 17, (2008) 172 JP 358
Bailii
England and Wales

Criminal Evidence

Updated: 15 November 2021; Ref: scu.270455

The defendant appealed against his convictions, inter alia, for membership of a proscribed organisation. He said that the judge should not have admitted in evidence his application for asylum in Sweden which had included his declaration of membership of the IRA. Held; The evidence of Swedish law was that such documents only attracted confidentiality if the asylum request succeeded, and: ‘the evidence was lawfully obtained in Sweden and in the United Kingdom in accordance with the international conventions applicable at the time. There was no element of compulsion on the appellant. This was a voluntary procedure. The appellant had legal advice in Sweden as to Swedish law and under Swedish law the asylum documents could properly be revealed to the authorities in another jurisdiction if the asylum application was unsuccessful. There was no evidence that the appellant was under any pressure in relation to the completion of the application. There is no evidence that the appellant would have declined to answer questions put if he had been cautioned. It was open to the appellant to give evidence at trial in relation to the contents of the application. There was no evidence that there was any fabrication or distortion within the documents.’ It was a matter of discretion as to whether such evidence was admitted, the judge had considered the relevant matters and concluded correctly.

Morgan LCJ, Higgins LJ and Girvan LJ
[2013] NICA 22
Bailii
Northern Ireland
Citing:
Cited – Thompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .

Cited by:
Appeal from – McGeough, Regina v SC 21-Oct-2015
(Northern Ireland) The appellant had been injured in a gunfight with a policemen. He was later convicted for attempted murder, but escaped and fled the country. He applied for asylum in Sweden saying that he was a member of the IRA. He now appealed . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 14 November 2021; Ref: scu.511128

The court was asked whether the legal (or persuasive) burden of proof rests on the defendant when a defence is raised under section 45 of the 2015 Act, or whether the defendant bears only an evidential burden with the prosecution having to disprove to the criminal standard one or more of the elements of the defence. The applications for leave to appeal have been referred to the full court by the Registrar.

Lord Burnett CJ, Andrews DBE, Martin Spencer JJ
[2018] EWCA Crim 667, [2018] WLR(D) 203, [2018] Crim LR 922, [2018] 2 Cr App R 14, [2018] 3 WLR 895, [2018] 3 All ER 566
Bailii, Bailii, WLRD
Modern Slavery Act 2015 45
England and Wales

Criminal Evidence

Updated: 12 November 2021; Ref: scu.608703

The appellant was charged with pre-2003 Act sexual offences. He wished to give evidence that he honestly believed the complainant was consenting to sexual activity with him because, earlier on the same evening, he had observed her behaving in a sexually explicit manner on stage in a nightclub. He sought leave to cross-examine the complainant as to that behaviour. The prosecution argued that the complainant’s earlier behaviour was irrelevant to the issue of his belief; to hold otherwise would mean that ‘every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant, and consent in particular to be touched in a sexual manner by a complete stranger’.
Held: Lord Woolf said that ‘looking purely at the question of relevance, we feel compelled to conclude that as the appellant’s defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant’. Nevertheless, relevance to an issue in the case was not the only matter that the judge had to consider. Even if the appellant could satisfy the requirement of sub-section 3(a), the judge must also consider, under section 41(2)(b), whether a decision to exclude evidence of sexual behaviour might have the result of rendering unsafe a conclusion of the jury on that issue. If it would not, leave would be refused.
Lord Woolf identified the legislative intention behind section 41(2)(b): ‘ . . it was framed in that way because it was the policy of the Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination. The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults on them. The policy was to protect complainants in proceedings in relation to sexual offences alleged to have been committed against them. It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage . . was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it.’

Lord Woolf CJ, Davis and Field JJ
[2005] EWCA Crim 396
Bailii
Sexual Offences Act 2003 16
Cited by:
Cited – Gjoni v Regina CACD 9-Apr-2014
The defendant appealed against his conviction for rape, raising an issue as to the proper approach to a judgment whether to exclude evidence of sexual behaviour of the complainant relating to a ‘relevant issue in the case’ within the meaning of . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 12 November 2021; Ref: scu.260089

The court considered the application of the 2003 Act to communications made to, or by, the defendant, and in particular text messages sent by mobile telephone.
Held: The four appeals against conviction were dismissed. Singh established that the common law rules on hearsay had been abolished by the 2003 Act. The court set out its understanding of the position now: ‘ Sometimes the contents of a communication may be admissible by this route even though hearsay. But: i) admission under section 114(1)(d) is not routine, nor a matter of mere form; it requires careful thought, having due regard to (especially) reliability and the opportunity to test it . . ii) there are different rules applicable to hearsay; see for example section 121 where there is multiple hearsay, the power contained in section 125 to stop a case dependent on hearsay if the evidence is so unconvincing that a conviction would be unsafe and the general discretion under s 126 to refuse to admit a statement on grounds of undue waste of time; iii) if the maker(s) of the communication is or are unknown, that will be very relevant to whether their hearsay evidence ought to be admitted; we have not heard full argument upon this point and do not decide it; however, we draw attention to the fact that no anonymous witness order under ss 86-89 of the Coroners and Justice Act 2009 can be made in a case of fear in relation to evidence which is hearsay, because of the existence of s 116(1)(c) of the 2003 Act which requires the fearful witness whose hearsay is adduced to be identified . . whilst there may be some forms of anonymous hearsay which are nevertheless admissible, such as business records or the statement of an unidentified agent of the defendant, the hearsay testimony of an anonymous witness may well fail the interests of justice test of admissibility. . ‘

Hughes LJ VP, Treacy, Edwards-Stuart JJ
[2011] EWCA Crim 1143, [2011] 2 Cr App Rep 17
Bailii
Criminal Justice Act 2003 114 118
England and Wales
Citing:
Cited – Regina v Kearley HL 3-Jun-1992
Telephone calls which were made to the defendant’s phone asking for drugs, but made after the arrest of the defendant for supplying drugs were inadmissible as hearsay. They were adduced to prove, by implication, the fact that he, as an occupier of . .
Cited – Regina v Singh CACD 23-Feb-2006
The evidence against the defendant was that he was the holder and user of mobile telephone lines used in a kidnapping. The court used evidence of the numbers stored in other mobile phones contacted by him to show that he was part of a conspiracy. It . .
Cited – Regina v Z CACD 23-Jan-2009
The defendant appealed against convictions for rape and indecent assault under the 1956 Act. The allegations dated from 1985 to 1989 when the complainant had been between 9 and 13. The prosecution brought in a doctor who said that in 1993 D . .
Cited – Y, Regina v CACD 25-Jan-2008
The Crown appealed against a ruling that the court would not admit a written statement of a defendant from a related trial implicating the defendant.
Held: A Court of Appeal will only interfere with a ruling under the Act if the ruling falls . .
Cited – Regina v Mayers, Glasgow and others CACD 12-Dec-2008
The court considered the application of the rules in the 2008 Act on witness anonymity orders.
Held: There is no basis at common law or under the 2003 Act or the 2008 Act upon which anonymous hearsay evidence can be admitted. . .
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .
Cited – Regina v Elliott CACD 27-Jul-2010
It had been relevant for the Crown to prove that the defendant was an adherent to a gang. It sought to rely (inter alia) on some letters sent to him in prison which contained references to membership of the gang and symbols signifying the same.
Cited – Regina v MK CACD 4-Dec-2007
The prosecution sought to introduce evidence of the words used in a phone call between someone wanting drugs and the defendant, who was accused (amongst other things) of being concerned in making an offer to supply a controlled drug of class, ie . .
Cited – Regina v Chrysostomou CACD 24-Jun-2010
The defendant appealed against his conviction for harassment. He was said to have used an imitation firearm to put a person in fear of violence. The prosecution had used texts received to the defendant’s mobile phone as ‘bad character’ evidence. The . .
Cited – Regina v Mayers, Glasgow and others CACD 12-Dec-2008
The court considered the application of the rules in the 2008 Act on witness anonymity orders.
Held: There is no basis at common law or under the 2003 Act or the 2008 Act upon which anonymous hearsay evidence can be admitted. . .
Cited – Regina v Fox CACD 28-Apr-2010
The contents of an anonymous 999 call were inadmissible as evidence that the facts reported were true. . .
Cited – Regina v Bains CACD 20-Apr-2010
The defendant renewed his application for leave to appeal against his conviction of being concerned in the supply of Class A drugs. . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 11 November 2021; Ref: scu.439659

The defendant appealed against her conviction for robbery. She had been convicted after an identification parade, which she said had not been conducted properly.
Held: The defendant had two significant and apparent tattoos. Each of the other members of the parade could be excluded from identification because they had no tattoo. The parade had minimal evidential value and should have been excluded. In the absence of other evidence, the appeal succeeded: ‘it is important that this Code is adhered to. Mistakes in identification leading to the conviction of innocent persons have been all too common in the past. The rules as to identification parades are intended to minimise that risk.’

Stanley-Burnton LJ, Tugendhat J, Stewart QC J
[2010] EWCA Crim 972
Bailii
England and Wales

Criminal Evidence

Updated: 11 November 2021; Ref: scu.425196

Appeal from allowance of admission of hearsay evidence

[2021] EWHC 2530 (Admin)
Bailii
England and Wales

Criminal Evidence

Updated: 11 November 2021; Ref: scu.668442

Non-approval didn’t devalue fingerprints

The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the control fingerprints thus taken inadmissible in any subsequent court proceedings? ‘
Held: The appeal was dismissed. Parliament did not intend, by enacting article 61(8B), that the consequence of an absence of approval should be to render inadmissible any fingerprints produced electronically. The rule in Scott v Baker did not apply since that set out to measure something which could only be measured once and at the time, and that related to evidence which was at the heart of the offence involved, and ‘The control fingerprints taken from the appellants in the police station were not snapshots. The impressions which their fingers provided could be reproduced at any time afterwards, and would be the same. The accuracy of the Livescan readings, if disputed, could readily be checked independently by the appellants providing more samples, whether by ink and paper or by any other means, for examination by an independent expert. The ease with which this can at any time be done demonstrates that there was no need at all for Parliament to stipulate, or to intend, that the product of unapproved electronic fingerprint readers should be inadmissible. ‘

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes
[2013] UKSC 32, [2013] NI 133, [2013] 2 Cr App R 17, [2013] 3 All ER 365, [2013] WLR(D) 199, [2013] 1 WLR 1611, UKSC 2012/0007
Bailii, WLRD, Bailii Summary, SC Summary, SC
Northern Ireland
Citing:
Cited – Kuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .
Cited – Regina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Cited – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Appeal from – The Public Prosecution Service v Elliott and Another CANI 28-Sep-2011
The prosecutor appealed against dismissal of the case based upon fingerprint evidence. The prints had been taken digitally using a device which had not been approved as required. . .
Distinguished – Scott v Baker 1968
The 1967 Act introduced the offence of driving with excess alcohol. The power to require a suspect to provide a laboratory blood or urine sample, by which blood alcohol could be tested, was made dependent upon a complex step-by-step procedure. The . .
Cited – Fox v Chief Constable of Gwent HL 1986
The driver left an accident. The police entered his home unlawfully, and on his refusal to supply a breath test, he was arrested and charged with faiing to supply.
Held: A lawful arrest is not an essential requirement before a breath test, and . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.510004

A recorded prisoner’s telephone call from prison was admissible in evidence without the defence having any right to challenge it, where the interceptor established a presumption of consent to the interception because of warnings given to prisoners.

Buxton LJ, Blofield J Tucker QC HHJ
Times 11-Nov-1998, [1999] 2 Cr App R 59, [1998] EWCA Crim 3142, [1999] 1 WLR 949
Bailii
Interception of Communications Act 1985 9
England and Wales
Cited by:
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.87504

Admission of hearsay evidence

The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: ‘Although the court has a cardinal responsibility to ensure that a defendant receives a fair trial, careful decisions need to be taken in situations of this kind if there is a real risk that a victim of domestic abuse may suffer further harm following her cooperation with the prosecuting authorities. Here, the prosecution was aware from the outset that M was frightened that providing a witness statement might provoke a violent reaction from the appellant. This was not a situation in which the prosecution was seeking to resort to unfair tactics in order to avoid introducing evidence that was potentially inconsistent with the case against the defendant, or because it simply anticipated that there was a risk the witness might give an untruthful account. The Crown’s stance was a seemingly sensible recognition of the potentially dangerous position in which M had been placed. Given these facts, it was appropriate to admit this res gestae evidence notwithstanding, in a strict sense, M was available as a witness, for instance if the court had issued a witness summons.’

Fulford LJ, Jay J
[2015] EWHC 232 (Admin)
Bailii
Criminal Justice Act 1988 39, Criminal Justice Act 2003 114 118, Criminal Procedure Rules 2014 34.2
England and Wales
Citing:
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .
Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Cited – Regina v EED CACD 28-May-2010
A witness had been warned to attend court, but had not served with an order and did not attend. The defendant appealed against his conviction saying that her evidence should not have been read to the jury. He had faced allegations of sexual abuse of . .
Cited – Regina v Riat and Others CACD 11-Jul-2012
Five defendants appealed against their convictions after the admission of hearsay evidence.
Held: The court re-iterated that the importance of the hearsay evidence to the case remained a vital consideration when deciding upon its . .

Cited by:
Cited – Morgan v Director of Public Prosecutions Admn 6-Dec-2016
Res Gestae Evidence correctly admitted
The appellant challenged by case stated the admission by magistrates at his trial of two pieces of evidence under the res gestae principle under section 118(3) of the 2003 Act. The allegation was one of domestic violence. The court had admitted the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.542307

Evidence of making indecent images admissible

Each defendant was convicted of offences of sexual abuse of children, in each case said to have been committed over a substantial period. Each of them denied any sexual contact with the children at all. In each case the judge admitted, under the bad character rules contained in the Criminal Justice Act 2003, evidence that the defendant had viewed and/or made indecent photographs of children. The defendants contended that the judge was wrong to admit that evidence.
Held: The appeals failed: ‘we are satisfied that this evidence was admissible and properly admitted under gateway D. It is true that the making of the images found appears to have been in 2008 or thereabouts and that that was some years after the two complainants had ceased to live with the defendant and thus when any offences could have been committed. But a sexual interest in young children is a characteristic which is unlikely to change over years. The jury was entitled to find that this evidence tended to show that the complaints were not false but rather were made against a man who would indeed have had the sexual interest in these two children which they said he had.’

Hughes VP CACD LJ, Roderick Evans, Gloster DBE JJ
[2011] EWCA Crim 1474, [2012] 1 Cr App R 8, [2013] 1 WLR 676, (2012) 176 JP 11, [2011] 4 All ER 568
Bailii
England and Wales

Criminal Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.562781

Incomplete Information distorted jury’s picture

The defendant appealed against his conviction for robbery saying that it was a named third party. The jury had been told of his own previous conviction for robbery, but not that the third party had also so been previously convicted. The jury had only been informed that the third party had a conviction for theft.
Held: The appeal succeeded. The limit on the evidence has distorted the picture given to the jury, and the appeal succeeded. Section 100 of the 2003 Act did preclude evidence of propensity or as to credibility of a non-defendant being admitted. However, Weir established that evidence relating to credibility was admissible under section 100. The same applied to evidence relating to propensity.

Lord Justice Moses, Mr Justice Irwin and Mr Justice Edwards-Stuart
[2009] EWCA Crim 2899, Times 23-Feb-2010, (2010) 174 JP 203
Bailii
Criminal Justice Act 2003 100
England and Wales
Citing:
Cited – Regina v Weir, Somanathan,Yaxley-Lennon, Manister, Qiang He and De Qun He CACD 11-Nov-2005
The defendant objected to evidence being used as evidence of bad character against him under the 2003 Act, when it would not have been admissible as similar fact evidence under the old rules.
Held: Obiter dicta in O’Brien did not mean that the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 09 November 2021; Ref: scu.406140

The material obtained by intercepting signals passing between a base unit and the handset of a cordless telephone was admissible because no communication was being made by means of a public system when the calls were intercepted by the police. A cordless phone in house was not ‘comprised in’ nor part of a public telecommunications system, and was not covered by the Act, and could be intercepted without warrant or authority. ‘Once again, one sees the emphasis on the duty of the person running the public system and the transmission through that system. . My Lords, in the light of these statutory provisions, I do not, for my part, entertain any doubt that the trial judge was right in concluding that the Geemarc cordless telephone used by Miss Sumer was a privately run system. The apparatus was clearly not ‘comprised in’ the public British Telecommunications system although it was connected to it by means of the socket at which, on the judges’ finding, that system ended. A communication through a telecommunication system consists of a series of electronic impulses and what was actually intercepted by the use of the police officers’ radio receiver consisted of the impulses transmitted between the base unit and the handset, both of which formed part of a telecommunication system ‘run’ by Miss Sumer (Act of 1983, section 4(2)) but formed no part of the public telecommunication system run by British Telecommunications.’

Lord Oliver of Aylmerton
Gazette 26-Oct-1994, Independent 29-Jul-1994, Times 22-Jul-1994, [1995] AC 1309
Interception of Communications Act 1985 1 9
England and Wales
Citing:
Appeal from – Regina v Effik; Same v Micthell CACD 23-Mar-1992
The police had unlawfully intercepted telephone calls made by the defendant.
Held: The evidence had been properly admitted notwithstanding its unlawful origins. . .

Cited by:
Appealed to – Regina v Effik; Same v Micthell CACD 23-Mar-1992
The police had unlawfully intercepted telephone calls made by the defendant.
Held: The evidence had been properly admitted notwithstanding its unlawful origins. . .
Cited – Regina v Allan, Bunting and Boodhoo CACD 6-Apr-2001
The authorities intercepted telephone conversations on card phones used by prisoners with people outside the prison. Was the intercepted material admissible? Was it a ‘communication in the course of its transmission . . by means of a public . .
Cited – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Cited – Regina v E CACD 26-Apr-2004
The court was asked as to the permissibility of admitting covert recordings of the accused’s car by investigating officers, which recorded the accused’s words as they spoke into their telephones. The defendants said that this amount to interception . .
Cited – Edmondson and Others v Regina CACD 28-Jun-2013
Course of Transmission includes Voicemails
The defendants appealed against convictions for conspiracy to intercept telephone voicemail messages whilst employed in various positions in newspapers. The issue boiled down to when the ‘course of transmission’ of a voicemail message ended, that is . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 09 November 2021; Ref: scu.86626

The court considered the use in evidence of facial photograph comparison techniques. The expert had given an opinion that the comparison gave support to a conclusion that the photograph in issue was of the defendant, but there was no database showing any statistical basis for the suggestion. The defendant said that the use of the expressions of level of support in the form of an ascending scale carries the risk of bestowing upon evidence which is purely subjective a spurious scientific authority.
Held: Evidence based on facial recognition has been repeatedly accepted. Such a sliding scale must be used only with caution: ‘it does not have a scientific basis, in the sense of an arithmetical or numerical scale; it is simply a convenient means of expressing a conclusion.’ However ‘the fact that a conclusion is not based upon a statistical database recording the incidence of the features compared as they appear in the population at large needs to be made crystal clear to the jury. But we do not agree that the absence of such a database means that no opinion can be expressed by the witness beyond rehearsing his examination of the photographs. An expert who spends years studying this kind of comparison can properly form a judgment as to the significance of what he has found in any particular case. It is a judgment based on his experience. A jury is entitled to be informed of his assessment. The alternative, of simply leaving the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all about their significance, would be to give the jury raw material with no means of evaluating it. It would be as likely to result in over-valuation of the evidence as under-valuation. It would be more, not less, likely to result in an unsafe conclusion than providing the jury with the expert’s opinion, properly debated through cross-examination and, if not shared by another expert, countered by contrary evidence.’ Disallowing such a sliding scale would also leave a defendant less scope to challenge the evidence.
‘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. It sometimes happens that such anxieties are reinforced when experts overstate their case, as the experts under consideration in both Gray and Tang appear to have done. But the remedy is not to prevent all experts, good and bad, from expressing any informed opinion at all as to the import of their findings. The three principal remedies are (i) to have such evidence examined and, if appropriate, criticised by an expert of equal experience and skill, (ii) to subject the evidence to rigorous testing in the witness box and (iii) to ensure careful judicial exposition to the jury of the difference between factual examination/comparison or arithmetical measure on the one hand and, on the other, a subjective, but informed, judgment of the significance of the findings.’

Hughes LJ, Rafferty J, Slade J
[2009] EWCA Crim 1876
Bailii
England and Wales
Citing:
Cited – Regina v Clarke CACD 30-Jan-1995
There were no special rules for the admission of evidence by computerised facial mapping. The ultimate gatekeepers on the admission of evidence of previous convictions are the rules on similar fact evidence. . .
Cited – Regina v Gray CACD 2003
Mitting J discussed the use of facial mapping expert evidence: ‘We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some . .
Cited – Regina v Stockwell CA 5-Apr-1993
Expert evidence of facial comparison was admissible if the information and assessment are not otherwise available to the jury. As to Turner: ‘It is to be noted that Lawton LJ there referred to a jury forming their own conclusions ‘without help’. . .
Cited – Regina v Hien Puoc Tang 24-May-2006
Austlii (Supreme Court of New South Wales – Court of Criminal Appeal) CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and . .
Cited – Regina v Hookway CACD 1-Feb-1999
The defendant appealed against his conviction based on expert facial mapping evidence.
Held: Such evidence might stand on its own, and had been properly left before the jury. . .
Cited – Attorney General’s Reference (No 2 of 2002) CACD 7-Oct-2002
The defendants had been seen on video. The prosecution sought to admit, in addition to the video evidence itself, evidence from police officers as to the identity of persons claimed to be shown on the tape. The officers evidence was offered but not . .
Binding – Regina v Gardner CACD 28-Jun-2004
The court affirmed the general admissibility of expert facial comparison evidence, and said: ‘There is no rule . . that in a case such as the present an expert witness cannot go further than saying ‘there are the following similarities’ leaving the . .
Cited – Regina v Ciantar CACD 2005
The court considered a case in which there was admited expert evidence using posture to identify the defendant. . .
Cited – Regina v Luttrell; Regina v Dawson; Regina v Hamberger CACD 28-May-2004
The defendants appealed saying the court had wrongly admitted the evidence of a lip reader.
Held: Lip-reading was a recognised skill, and provided the judge gave appropriate warnings to a jury, recognising the possibility that evidence may not . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 02 November 2021; Ref: scu.375561

A witness had been warned to attend court, but had not served with an order and did not attend. The defendant appealed against his conviction saying that her evidence should not have been read to the jury. He had faced allegations of sexual abuse of his wife’s younger sisters. Two gave evidence, but the third did not attend. Her evidence was presented as hearsay to rebut the defendant’s allegation of recent concoction.
Held: The appeal failed. The trial judge is the gatekeeper responsible for the fairness of the trial, and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116. Though the evidence was not entirely difficult for the defendant, it was prejudicial. The judge had failed to analyse whether the prosecution was at fault in not requiring her attendance. It should not have been admitted. Nevertheless, ‘as the evidence emerged, the appellant was in hardly a worse position than he would have been if the statement had not been admitted. On the contrary, he was now in a position to construct an argument, without having to put that argument to the witness that the reason why the statements differed, was because there had indeed been collaboration between LT and ML as alleged.’ A consideration of the issue of the truthfulness of the hearsay evidence was largely subsumed in the jury’s principal task of which it was reminded by the judge time and again, namely to judge the truthfulness of the complainants themselves . . the jury that they believed all four women.

Pitchford, Rafferty LJJ, Goldstone QC J
[2010] EWCA Crim 1213, (2010) 174 JP 289, [2010] Crim LR 862
Bailii
Criminal Justice Act 2003 114(1)(d)
England and Wales
Citing:
Cited – O’Hare, Regina v CACD 7-Sep-2006
Scott Baker LJ said that: ‘We think it is important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.
But section 114(1)(d) should not be so narrowly applied that it . .
Cited – Regina v Z CACD 23-Jan-2009
The defendant appealed against convictions for rape and indecent assault under the 1956 Act. The allegations dated from 1985 to 1989 when the complainant had been between 9 and 13. The prosecution brought in a doctor who said that in 1993 D . .
Cited – Regina v Adams CACD 23-Nov-2007
The defendant appealed his conviction after the court had allowed a prosecution witness’ statement to be read. The witness did not attend, only being notified in the last few working days before the hearing.
Held: Though the defendant’s appeal . .
Cited – Musone v Regina CACD 23-May-2007
A serving prisoner was stabbed to death in his cell. The appellant admitted that he had punched the victim twice but maintained that another man had stabbed him, which explained the incriminating presence of the victim’s blood in the vicinity of the . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – RL v Regina (Evidence of wife) CACD 7-May-2008
The defendant appealed against his conviction for sexual assault on his daughter. Whilst he was in custody, the police approached his wife and took a statement from her which was used in evidence. The defendant complained that since they had not . .
Cited – Sak v Crown Prosecution Service Admn 13-Nov-2007
Whether the court had been correct to allow hearsay evidence from a doctor who had attended the defendant in the police cells but who had not attended court. . .
Cited – Regina v Adams CACD 23-Nov-2007
The defendant appealed his conviction after the court had allowed a prosecution witness’ statement to be read. The witness did not attend, only being notified in the last few working days before the hearing.
Held: Though the defendant’s appeal . .

Cited by:
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 02 November 2021; Ref: scu.416167

A Police Constable’s fleeting view of a Defendant could be sufficient identification, subject to checks in court. However a Turnbull warning as to the need for corroboration may not always be necessary. The ‘striking similarity’ or ‘signature’ test would continue to apply in all cases where identification was in issue, but even where identity is an issue, the degree of similarity required will vary according to the other evidence in the case. The court extracted from the Turnbull a test which it stated in the context of a case of identity as follows: ‘Evidence tending to show that a defendant has committed an offence charged in count A may be used to reach a verdict on count B and vice versa, if the circumstances of both offences (as the jury would be entitled to find them) are such as to provide sufficient probative support for the conclusion that the defendant committed both offences, and it would therefore be fair for the evidence to be used in this way notwithstanding the prejudicial effect of so doing. To decide whether the evidence provides sufficient probative support so that it is fair to use it in this way, may require careful analysis and trial judges would be wise to seek the support of counsel before closing speeches are made, if not before.

Ind Summary 24-Oct-1994, Times 07-Oct-1994, [1998] 2 Crim App R 289, [1995] Cr App R 415
England and Wales
Citing:
Cited – Regina v Turnbull (Launcelot) CACD 1977
. .
Approved – Regina v Kane 1965
The court considered whether a private club was a public place. The defendants were charged with making an affray in a public place. The events had taken place in a member’s club. The practice at the club was that people were signed in without being . .

Cited by:
Cited – Regina v Venn CACD 1-Feb-2003
The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 02 November 2021; Ref: scu.88320

The defendant appealed against his conviction for rape, raising an issue as to the proper approach to a judgment whether to exclude evidence of sexual behaviour of the complainant relating to a ‘relevant issue in the case’ within the meaning of section 41(2) of the 1999 Act. The appellant argued that the trial judge’s ruling deprived him of a fair trial. It had the effect of curtailing the evidence of the appellant relevant to his defence of honest and reasonable belief in the complainant’s consent to sexual intercourse.
Held: The appeal failed. The evidence had been correctly excluded: ‘we do not consider that the admission of the full content of these conversations would have improved the appellant’s standing in the eyes of the jury or, more particularly, that it was necessary to admit the evidence to avoid an unsafe conclusion by the jury. The fact that Lee told the appellant he had had sexual intercourse with the complainant on a previous occasion cannot 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. Furthermore, the line of reasoning required was exactly that prohibited by section 41(4): that a woman who consents to intercourse with one comparative stranger will, a week later, and in different circumstances, consent to have intercourse with another.

Pitchford LJ, Coulson, Spencer JJ
[2014] EWCA Crim 691
Bailii
Youth Justice and Criminal Evidence Act 1999 41
England and Wales
Citing:
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Bahador, Regina v CACD 15-Feb-2005
The appellant was charged with pre-2003 Act sexual offences. He wished to give evidence that he honestly believed the complainant was consenting to sexual activity with him because, earlier on the same evening, he had observed her behaving in a . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 02 November 2021; Ref: scu.523633

The defendant appealed against his conviction for murder. He complained as to the admission of some additional evidence from one of the co-defendants.
Held: The appeal failed. Although some of the judge’s analysis was incorrect: ‘We recognise that a court will not readily admit an out of court statement by one defendant as evidence against another. But in our view a critical feature of this case, as the judge recognised, is that the application was made by a co-defendant who sought to have the evidence admitted in support of his case. Staponka was saying, by implication, that the appellant was responsible for the attack, and this was potentially important evidence in support of his case. Notwithstanding the errors in the way the judge dealt with paragraphs (e) and (f), it is clear in our view that the judge did believe that the evidence was potentially reliable and after a very careful consideration of all relevant matters, he came to the conclusion that the evidence should be admitted. In our judgment that was a cogent and proper conclusion properly available to him. The case of McLean indicates that once evidence is in under section 114 it is in for all purposes.’

Elias LJ, William Davis J, Batty QC HHJ Rec of Carisle
[2015] EWCA Crim 22
Bailii
Criminal Justice Act 2003 114, Police and Criminal Evidence Act 1984 76A
England and Wales

Criminal Evidence

Updated: 01 November 2021; Ref: scu.542022

The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of the special need for caution before convicting the accused in reliance upon the correctness of identification. No special form of words need be used. The jury should examine closely the circumstances of the identification. Recognition may be more reliable than identification of a stranger, but mistakes can still be made.
Lord Widgery discussed the direction about alibi evidence: ‘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, that fabrication can 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.’
Lord Widgery continued: ‘In our judgment the dangers of miscarriage of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment. First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he 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 description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.’

‘Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger . . When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman’s handbag; he gets only a fleeting glance of the thief’s face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father’s . . In our judgment odd coincidences can, if unexplained, be supporting evidence. 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.’

Widgery LCJ, Roskill and Lawton L.JJ., Cusack and May JJ
[1976] 3 WLR 445, [1977] QB 224, (1976) 63 CAR 132, [1976] 3 All ER 549
lip
England and Wales
Citing:
Cited – Regina v Long CACD 1973
The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and . .

Cited by:
Cited – Regina v Charles CACD 19-Jul-2001
The defendants appealed convictions for robbery, disputing the admission of police and identification evidence. There had been several failures to comply with the codes of practice, including the failure to hold an identity parade when so requested, . .
Cited – Dean Cedeno v Kenwin Logan PC 18-Dec-2000
(Trinidad and Tobago) The defendant appealed conviction and sentence for larceny, based on identification evidence. He said that the magistrate had failed to give proper weight to the need, pace Turnbull, to be careful in accepting identification . .
Cited – Leslie Tiwari v The State (Appeal No 76 of 2001) PC 29-May-2002
(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant . .
Cited – Barry George v Regina CACD 29-Jul-2002
There had been an identification parade, but the witness had not made an unqualified identification of the defendant. He now appealed admission of the evidence from ID parade.
Held: Recognising the difficulties in identification evidence, and . .
Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
Cited – Bertrand Roberts and Roland Roberts v The State PC 15-Jan-2003
PC (Trinidad and Tobago) The appellants had been convicted of murder and their capital sentences commuted. They now sought to challenge the convictions as to the admission of and directions given on the . .
Cited – Regina v Haynes CACD 2-Feb-2004
In a difficult case, the judge asked for the assistance of counsel in the absence of the jury, but declined assistance in connection with his proposed Turnbull direction. That direction was then said to be defective.
Held: A wise judge makes . .
Applied – Regina v Stanton CACD 10-Mar-2004
In the course of the defendant’s trial issues of identification arose. The defendant appealed.
Held: The judge failed to draw to the attention of the jury any specific weaknesses in the identification evidence as required in Turnbull. It was a . .
Cited – Davies v Regina CACD 29-Oct-2004
The defendant appealed against his conviction for murder. He said the identification was partial and weak, being of a partial face and two spoken words. It was objected that his counsel had wrongly failed to object to its admission.
Held: . .
Cited – Regina v Flemming CACD 1986
It was quite unnecessary for a trial judge faced with issues about the quality or probative value of identification evidence to hold a trial-within-a-trial. The normal procedure was that laid down in Turnbull, where the court ‘made it abundantly . .
Cited – Regina v Bentley CACD 1991
Where an identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is remains a risk for mistake in such cases. Many people have experienced thinking that they . .
Cited – Fuller v State 1995
(Court of Appeal of Trinidad and Tobago) The court gave guidance on the need to give proper directions on identification evidence to accord with Turnbull: ‘We are concerned about the repeated failures of trial judges to instruct juries properly on . .
Cited – Aurelio Pop v The Queen PC 22-May-2003
PC (Belize) A witness identified the accused only making the link between the man he knew as R and the accused as the result of an improper leading question by prosecuting counsel. There had been no . .
Cited – Langford and Another v The State PC 11-May-2005
(Dominica) The appellants appealed convictions for together having kicked a man to death. They said the convictions were founded on unreliable identification evidence.
Held: The judge had made several misdirections, as to the reliability of . .
Cited – Regina v Thornton CACD 2-Jun-1994
A judge is to give the jury a full Turnbull warning on identification evidence if identity is disputed. The defendant was at the scene, but denied his involvement. . .
Cited – Delroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
Cited – Director of Public Prosecutions v Uddin Admn 8-Jun-2006
Prosecutor’s appeal by case stated against dismissal of charge of taking vehicle without the owner’s consent. Officer’s fleeting sight of defendant who was known to him driving. . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
Cited – Labastide and Carty, Regina v CACD 19-Nov-2008
The defendants appealed their conviction for murder. They were said to have been members of a gang, and were present and armed and part of the joint enterprise leading to the murder. The convictions were based on identification evidence from . .
Cited – Phipps v The Director of Public Prosecutions and Another PC 27-Jun-2012
phipps_dppPC2012
(Jamaica) The defendant appealed against his conviction for murder. He complained that he had been prejudiced because the jury were told that he had been produced from custody, and one of his witnesses was produced in court in chains, thus . .
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – Weir and Another, Regina v CANI 14-Jan-2013
Renewed application for leave to appeal against convictions for robbery. The defendant complained as to the unreliability of identification evidence, and as to a note passed by the jury to the judge indicating the use by the jury of the specialist . .
Cited – Regina v Holmes CACD 14-Mar-2014
The defendant appealed against his conviction for sexual and common assault. He objected as to the use of bad character evidence, and the rejection of his no case to answer submission. The evidence was primarily by identification where the . .
Distinguished – Regina v Browning CACD 1991
A witness by the name of Hughes said that he was overtaken at considerable speed by a Renault 25 with a registration number beginning C7.
Held: The peculiar risks of mistaken facial identification do not apply to the same extent to evidence of . .
Dsitinguished – Hampton and Another v The Crown CACD 30-Jul-2004
The defendants appealed against their convictions for murder. Evidence had been admitted as to the identification of a car from a memory of the registration mark by a witness.
Held: The evidence was properly admitted without a Turnbull . .
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.174045

Res Gestae to admit circumstances of complaint

(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which is itself hearsay, but indicates directly or indirectly the identity of the attacker, the admissibility of that statement is dependent on whether it was made as part of the res gestae (all facts so connected with a fact in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction). The two difficulties with such evidence are that it may be concocted, and the exactness of the words may not be sure. The possibility of concoction is the real test of admissibility.
Lord Wilberforce said: ‘Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially,’ i.e. as establishing some fact narrated by the words. Authority is hardly needed for this proposition . . ‘ and ‘It is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but whether this is sufficiently shown must be a matter for the trial judge.’

Wilberforce, Reid, Hodson, Diplock, Cross of Chelsea LL
[1972] 2 AC 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930
Bailii
Australia
Citing:
Cited – Subramaniam v Director of Public Prosecutions PC 1956
(Malaysia) The defendant sought to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions, ‘nothing is an offence which is done by a person who is compelled to do it . .
Disapproved – Regina v Bedingfield 1879
The court had excluded evidence that the murder victim, who had run out of a house with her throat cut, had said to her aunt ‘see what Harry has done’. . .

Cited by:
Cited – Regina v Giles CACD 13-Mar-1997
The case involved an assault. The crown sought to introduce as evidence a statement made by the defendant’s brother at the scene under the res gestae rule.
Held: The circumstances were such as to allow admission of the evidence under the tests . .
Cited – Regina v Andrews HL 1987
Res Gestae no means of avoiding witness
The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Cited – Morgan v Director of Public Prosecutions Admn 6-Dec-2016
Res Gestae Evidence correctly admitted
The appellant challenged by case stated the admission by magistrates at his trial of two pieces of evidence under the res gestae principle under section 118(3) of the 2003 Act. The allegation was one of domestic violence. The court had admitted the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.181980

The defendant appealed against his conviction for a serious assault. He argued that the prosecution should not have been allowed to introduce parts of a witness’ statement where the witness could not remember the underlying events directly.
Held: The appeal failed. Aikens LJ said ‘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 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 identification 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 proceedings. 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.
Thus, we conclude that section 120(4) and (5) can be used to admit parts of Ms I’s witness statement, but not the whole of it. The parts that describe the appellant and identify him as being the person who was in the nightclub and then threw a glass bottle that hit Ms D are, in our view, admissible under section 120(5). But other parts of the narrative in the witness statement that go beyond identifying or describing the appellant and the fact that it was him that threw the glass bottle, are not admissible under section 120(4) and (5).’

Aikens LJ, Field Cooke QC JJ
[2012] EWCA Crim 501, (2012) 176 JP 209, [2012] Crim LR 707, [2012] 2 Cr App R 4
Bailii
Against the Person Act 1861 20, Criminal Justice Act 1967 9, Criminal Justice Act 2003 120(4) 120(6) 139
England and Wales
Citing:
Cited – Regina v Virgo CACD 1978
The defendant appealed against his conviction for conspiracy and corrupt acceptance of bribes. One of the witnesses for the prosecution was a person engaged in pornography and who had allegedly bribed the defendant. The Court considered the . .
Cited – Regina v Sekhon CACD 1987
A police officer witness kept an observation log based on his own observations and those of other police officers reporting to him. When retiring, the jury had requested access to the log which had been used by the officer to refresh his memory in . .
Cited – Pashmfouroush and Another, Regina v CACD 1-Sep-2006
Statements in an out of court witness statement were only put to the witness in cross-examination and the court was now asked whether the prosecution was entitled to re-examine on parts of the document not put to the witness in cross-examination. . .
Cited – Jones v Metcalfe QBD 1967
A witness saw a lorry involved in an incident and noted its registration number. He then gave the number to a policeman who had not seen the lorry.
Held: The evidence by the policeman of his note of the lorry’s number plate was inadmissible . .
Cited – Jones v Metcalfe QBD 1967
A witness saw a lorry involved in an incident and noted its registration number. He then gave the number to a policeman who had not seen the lorry.
Held: The evidence by the policeman of his note of the lorry’s number plate was inadmissible . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 01 November 2021; Ref: scu.452138

People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) The lie must be deliberate;
(2) It must relate to a material issue;
(3) The motive for the lie must be a realisation of guilt and fear of the truth; and
(4) The statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness.’
‘If a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure’ and ‘So the question is whether the jury should, and whether this was an appropriate case for the jury to be warned that a person may have lied for a reason other than his guilt such as something that he wishes to conceal from his family because it might disgrace him in some way in the eyes of his family . . they should have been directed in the view of the court that the evidence in question could be used against the applicant, as of course it could, but only on the basis that they were entitled to rely on it and if they were satisfied beyond reasonable doubt, that being the general standard of proof, that there was no innocent, that is to say no non-criminal explanation for the untruthful answers.’

Lord Lane CJ
[1981] QB 720, [1981] 73 Cr App R 159, [1981] 2 All ER 1008, [1981] 3 WLR 120
England and Wales
Cited by:
Cited – Regina v Barnett CACD 7-Feb-2002
The defendant gave three contradictory stories to explain a valuable painting found under his bed. He appealed his conviction, saying the judge should have given a Lucas direction to the effect that the fact that he had lied, did not mean inevitably . .
Cited – Philip Joshua Rahming v The Queen PC 20-May-2002
(Bahamas) The case was an appeal against a conviction for murder on the basis of the incorrect direction from the judge as to manslaughter and murder, and the failure to give a lies direction.
Held: The failure to bring the defendant before a . .
Cited – Michael Pringle v The Queen PC 27-Jan-2003
PC (Jamaica) The court considered the way in which statistical conclusions drawn from DNA evidence had been presented to the jury. The judge had fallen into the ‘Prosecutor’s Fallacy.’ Also the court had relied . .
Cited – Regina v Doheny, Adams CACD 31-Jul-1996
The court set out the procedure for the introduction of DNA evidence in criminal trials. In particular the court explained the ‘Prosecutor’s Fallacy’ when using statistical evidence. The significance of the DNA evidence will depend critically upon . .
Cited – Regina v Becouarn HL 28-Jul-2005
At his trial for murder, the defendant had not given evidence, and the court had allowed the jury to draw proper inferences under s35.
Held: The JSB direction ‘on drawing inferences [i]s sufficiently fair to defendants, emphasising as it does . .
Cited – Barlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Cited – Regina v A S CACD 20-Jan-1997
The defendant appealed against convictions for several sexual offences. The alleged victim had originally denied that any offending had taken place. The defendant denied that anything had happened. He complained now that the court had accepted in . .
Cited – Carman v Yates ChD 2005
When a civil judge thinks a witness may be lying, he should remember that witnesses may have different reasons for lying, and effectively give himself a Lucas direction. . .
Cited – Regina v Middleton CACD 12-Apr-2000
Where a defendant was shown to have lied in the course of proceedings it need not always be necessary to give a Lucas direction. In some circumstances the jury could properly be expected not to follow a prohibited line of reasoning without such a . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – Eyres v Atkinsons Kitchens and Bedrooms Ltd CA 24-Apr-2007
The driver appealed dismissal of his claim for personal injuries against his employer. He had crashed, but said that he had been awake for 19 hours.
Held: Both employer and employee must have been aware of the risks. The most likely . .
Cited – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
Cited – London Borough Council v K and Others FD 12-Apr-2010
The parents disputed contact for the children. The children then made allegations of very serious sex abuse against the father. A police investigation resulted in no action, it being said that the children had been coached to make false allegations . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.181619

Res Gestae no means of avoiding witness

The court should deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if he or she were available. The court laid down six tests for the admission of evidence under the res gestae rule.
Lord Ackner said: ‘My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as ‘hearsay evidence’?
1. The primary question which the judge must ask himself is – can the possibility of concoction 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 unusual 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 concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated 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. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
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 possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.’
. . And: ‘Whatever may be the position in civil proceedings, I would, however, 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.’

Lord Ackner
[1987] 1 AC 281, (1987) 84 Cr App R 382, [1987] 2 WLR 413, [1987] 1 All ER 513
England and Wales
Citing:
Cited – Ratten v The Queen PC 1-Jul-1971
Res Gestae to admit circumstances of complaint
(Victoria) Evidence had been admitted under the res gestae rule, that a woman making a telephone call was in a hysterical state.
Held: It was properly used. Where a statement is made either by the victim of an attack or by a bystander, which . .

Cited by:
Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Cited – Regina v Giles CACD 13-Mar-1997
The case involved an assault. The crown sought to introduce as evidence a statement made by the defendant’s brother at the scene under the res gestae rule.
Held: The circumstances were such as to allow admission of the evidence under the tests . .
Cited – Regina v Twist and Others CACD 12-May-2011
The court considered the application of the 2003 Act to communications made to, or by, the defendant, and in particular text messages sent by mobile telephone.
Held: The four appeals against conviction were dismissed. Singh established that . .
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .
Cited – Morgan v Director of Public Prosecutions Admn 6-Dec-2016
Res Gestae Evidence correctly admitted
The appellant challenged by case stated the admission by magistrates at his trial of two pieces of evidence under the res gestae principle under section 118(3) of the 2003 Act. The allegation was one of domestic violence. The court had admitted the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.181979

In each case complaint was made about the way in which the judge had dealt with applications by the Crown to bring in the defendant’s bad character as evidence of his propensity to commit the crime.
Held: The court set out the applicable principles. Parliament had intended to assist evidence based findings of guilt without risking conviction by prejudice. The statute provided seven gateways for admitting such evidence. To admit evidence of previous convictions they must show a propensity to the offence at issue, or to a propensity for dishonesty. There was no minimum number of events required to demonstrate such a propensity, though a single conviction would often not show propensity in the absence of some particular character to the offence.
Rose LJ VP said: ‘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 as striking similarity must be shown before convictions become admissible. The judge may also take into consideration 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 . . Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.’

Rose LJ VP, Hughes, Hallett JJ
Times 24-Mar-2005, [2005] EWCA Crim 824, (2005) 3 CAR 21, [2005] 1 WLR 3169
Bailii
Criminal Justice Act 2003 98 113
England and Wales
Cited by:
Cited – Regina v Bovell; Regina v Dowds CACD 25-Apr-2005
The defendants appealed their convictions. In one case the prosecution had brought evidence of bad character. Bovell was convicted of wounding with intent, pleading self-defence. His legal team later discovered that the complainant had himself been . .
Cited – Card, Regina v CACD 11-May-2006
The defendant appealed his convictions for sexual assault, saying that details of his previous convictions should not have been admitted under the 2003 Act.
Held: The appeal succeeded. Where there was a risk of evidence of previous complaint . .
Cited – O’Dowd v Regina CACD 12-May-2009
The defendant appealed against his conviction for serious sexual offences. The trial was very lengthy after the prosecution introduced bad character evidence from other allegations from some 17 years or more before. . .
Cited – McDonald v Regina CACD 16-Dec-2011
The defendant appealed against his convictions for murder and other offences of violence. He complained of the admission of bad character evidence against him, in the form of convictions for the use of firearms.
Held: The appeal failed. The . .
Cited – Najib v Regina CACD 12-Feb-2013
The defendant appealed against his conviction for murder saying that the court had given inadequate directions as to his ‘no comment’ interview, the need to treat the evidence of a co-accused with caution, and the need for a bad character direction. . .
Cited – Regina v Ellis CACD 12-Jan-2010
The defendant appealed against his conviction for possession of an offensive weapon in a public place. He had a friction locking police-style baton, handcuffs and a false police ID in the rear of his car when stooped. After first lying he said they . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.223830

The defendant appealed against his convictions for possession of controlled drugs with intent to supply. He complained at the use of of text messages found on his phone against him, saying they were hearsay.
Held: The texts contained assertions by a third party intending them to be believed, and were to be admitted as evidence to support the truth of those assertions. They were hearsay. As hearsay, before admission in evidence they had to meet the statutory tests, which in this case they did not. The texts should not have been admitted. Nevertheless the remaining evidence against the defendant was strong, and the verdict safe.

Aikens LJ, Hedley J, Hickinbottom J
[2009] EWCA Crim 1251, [2009] Crim LR 802, (2009) 173 JP 366
Bailii
Police and Criminal Evidence Act 1984 78, Criminal Justice Act 2003 58 115(3)
England and Wales
Citing:
Cited – Regina v Singh CACD 23-Feb-2006
The evidence against the defendant was that he was the holder and user of mobile telephone lines used in a kidnapping. The court used evidence of the numbers stored in other mobile phones contacted by him to show that he was part of a conspiracy. It . .
Cited – Regina v MK CACD 4-Dec-2007
The prosecution sought to introduce evidence of the words used in a phone call between someone wanting drugs and the defendant, who was accused (amongst other things) of being concerned in making an offer to supply a controlled drug of class, ie . .

Cited by:
Cited – Regina v Chrysostomou CACD 24-Jun-2010
The defendant appealed against his conviction for harassment. He was said to have used an imitation firearm to put a person in fear of violence. The prosecution had used texts received to the defendant’s mobile phone as ‘bad character’ evidence. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 01 November 2021; Ref: scu.347426

The defendants had been convicted by the use of low copy DNA evidence.
Held: Their appeals failed. Where the quantity of DNA evidence recovered was above the minimum threshold to exclude randomness, and subject to the emergence of further DNA scientific reliability evidence, challenges to the validity of the procedures as such would not be accepted. The Court of Appeal had obtained further expert evidence of the reliability of the procedures, and said that supporting evidence might be required where the volume of DNA was between 100 and 200 picogrammes. Expert evidence, based on scenes of crime experience, could be given as to the likelihood of there being other sources for the samples found.

Lord Justice Thomas, Mr Justice Kitchin and Mr Justice Holroyde
[2009] EWCA Crim 2698, Times 08-Jan-2010, [2010] Crim LR 716, [2010] 1 Cr App Rep 23
Bailii
England and Wales
Cited by:
Cited – Regina v Weller CACD 4-Mar-2010
The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility . .
Cited – Broughton, Regina v CACD 24-Mar-2010
The defendant appealed against his conviction for arson, saying that the conviction had been based on low count DNA evidence derived from a sample at the very minimal acceptable level. . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 31 October 2021; Ref: scu.392908

The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: His appeal was allowed. The judge had erred in refusing separate trials.
Lord Lane CJ said that the court had looked in vain for features of similarity that was striking or that went beyond ‘the incestuous father’s ‘stock in trade” that were considered necessary if the evidence of offences against one daughter was to be admissible in relation to the offences alleged against the other. The prosecution appealed.
‘Similar facts’ is a shorthand term for identifiable common or related features of probative value going beyond mere coincidence. It is not appropriate to single out striking similarity as an essential element in every case. The essential feature of evidence which is to be admitted is that its probative force is sufficiently great to make it just to admit the evidence, not withstanding that it is prejudicial to the accused intending to show that he was guilty of another crime. ‘Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect is a question of degree. Where the identity of the perpetrator is an issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.’
The test of admissibility of similar fact evidence was set out. Lord Mackay LC: ‘From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.’ While probative force may be derived from the striking similarity of the similar fact evidence this was not a precondition of admissibility: ‘Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.’

Lord Mackay LC
[1991] 93 Crim App R 267, [1991] 2 AC 447, [1991] 3 All ER 337, [1991] 3 WLR 161
England and Wales
Citing:
Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
Cited – Regina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .

Cited by:
Cited – Regina v Venn CACD 1-Feb-2003
The defendant appealed convictions for sexual assault against four young girls.
Held: The admissibility of ‘similar fact’ evidence depends upon the degree of its relevance. If only suggests propensity it is inadmissible. If it goes further and . .
Cited – Regina v Musquera CACD 1999
The court observed that, while the decision in DPP v P had eliminated the necessity to identify a striking similarity, it was still necessary to invoke some identifiable common feature or features constituting a significant connection and going . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – Regina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
Cited – Brizzalari v Regina CACD 19-Feb-2004
Limits to Requests for Adverse Inferences
In closing, prosecuting counsel had suggested that during the trial two matters had been mentioned by the defence which had not been mentioned earlier, and that the jury should feel free to draw proper inferences under the 1984 Act from that . .
Cited – Thomas v Commissioner of Police for Metropolis CA 28-Nov-1996
In an action for damages and false imprisonment, the defendant police officers sought to have introduced the claimant’s previous criminal record, which was expired under the 1974 Act.
Held: The judge had been correct not to follow practice in . .
Cited – Regina v Shanks CACD 19-Mar-2003
The appellant appealed his conviction for murder. He had shot his lover as she walked away from an argument. The fact of his conviction following mention of a guilty plea to possession of the firearm was complained of.
Held: The judge had . .
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Cited – Steel v Commissioner of the Metropolitan Police 10-Feb-1993
The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the . .
Cited – Regina v B (Evidence: Propensity) CACD 27-Jan-1997
The defendant appealed his conviction for indecent assaults, denying that any assaults had taken place. He complained that the judge had allowed questioning about his sexual propensities.
Held: Propensity to acts is not admissible as evidence . .
Cited – Regina v Jan CACD 12-Oct-2006
After his conviction for causing a public nuisance, and for arson, the defendant was sentenced to life imprisonment. The judge applied the section to decline to set a minimum tariff. He had set out on a large scale harassment campaign against former . .
Cited – Seaton v Regina CACD 13-Aug-2010
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said . .
Cited – Mitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Criminal Evidence

Leading Case

Updated: 31 October 2021; Ref: scu.181002

The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility of a DNA transfer having taken place, and in particular that there was no proper basis for the evaluation of the various possibilities to support the prosecution expert’s evidence.
Held: The appeal failed. On the basis of the state of the science at the date of the trial, the evidence was capable of being evaluated. The defendant now sought to bring in new unpublished material of his expert: ‘it is unrealistic to examine a field of science of this kind only by reference to published sources. A court in determining whether there is a sufficiently reliable scientific basis for expert evidence to be given and a jury in evaluating evidence will be entitled to take into account the experience of experts and, if their experience is challenged, to test that. If the evidence upon which they rely for the basis of their experience is challenged, then that can be evaluated by cross-examination.’ Notwithstanding, there was no fresh evidence to disturb the conviction.

Thomas LJ, Coulson J, Sir Geoffrey Grigson
[2010] EWCA Crim 1085
Bailii
Criminal Procedure Rules 33
England and Wales
Citing:
Cited – Regina v Abadom CACD 1982
A properly qualified expert is entitled to rely on what might otherwise be considered as hearsay, that is to say findings by other experts in the same field in support of an opinion on any given set of facts. ‘In the context of evidence given by . .
Cited – Regina v Reed and Reed CACD 21-Dec-2009
The defendants had been convicted by the use of low copy DNA evidence.
Held: Their appeals failed. Where the quantity of DNA evidence recovered was above the minimum threshold to exclude randomness, and subject to the emergence of further DNA . .

Cited by:
Cited – London Borough of Richmond v B and Others FD 12-Nov-2010
Caution in Use of Hair Samples to Test Alcohol
The court considered the extent to which reliance could be placed on tests of hair samples for alcohol in care proceedings.
Held: Such evidence should be used with caution: ‘(i) When used, hair tests should be used only as part of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 31 October 2021; Ref: scu.415926

Southwark Crown Court – two reports on the Mail’s Online website concerning inadmissible material relating to alleged earlier incidents of violence on the part of the defendant.

Fulford J
[2012] EW Misc 27 (CC)
Bailii

Criminal Evidence

Updated: 31 October 2021; Ref: scu.510054

Appeal against conviction of burglary. Admission of bad character evidence (many convictions of dishonesty) against alibi witness put forward only late – use of footprint matching evidence
[2011] EWCA Crim 754
Bailii
Criminal Justice Act 2003 100
England and Wales
Citing:
Cited – Brewster and Cromwell v Regina CACD 27-May-2010
The defendants appealed against their convictions for kidnapping and witness intimidation saying that the court should have allowed them to put the principle prosecution witness’ bad character in issue by admission of her criminal convictions.
Cited – T, Regina v CACD 26-Oct-2010
The court heard an appeal against a conviction for murder, the principle evidence being in the form of likelihood ratios in the interpretation of footwear marks.
Thomas LJ, giving the reserved judgment of the court, stated that if a footwear . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.434854

The defendant had obtained a psychiatric report through his solicitors. The report was adverse, and he did not call the expert. Instead the Crown applied and had the same expert give evidence. He appealed against his conviction.
Held: The doctor’s position, having been instructed by the solicitors for the purposes of the proceedings, was privileged as was the solicitor’s own knowledge. There is no property in a witness, but her evidence relied upon material protected by privilege. The defendant was to be protected from accidentally incriminating himself, and he was entitled to assume that what was said to a doctor instructed by his lawyers was just as protected as what was said to them.
May, Goldring, Gross LLJ
Times 04-Mar-2002, Gazette 06-Mar-2002, [2002] EWCA Crim 85, [2002] 1 WLR 1806
Bailii
Police and Criminal Evidence Act 1984 10(1)(b)
England and Wales

Updated: 22 October 2021; Ref: scu.167721

Spinks was charged under section 4(1) of the 1967 Act, in that knowing or believing that a Mr Fairey had committed an arrestable offence, he acted with intent to impede his apprehension or prosecution. To prove that Fairey had committed an arrestable offence, the prosecution relied on police officers statements as to statements made by Fairey, in the absence of the defendant, in which he said that he had stabbed someone. A submission of no case to answer was rejected and Spinks was convicted.
Held: The Court allowed his appeal. The court referred to ‘the universal rule which excludes out of court admissions being used to provide evidence against a co-accused, whether indicted jointly or separately’. ‘In the judgment of this Court the offence with which the appellant was charged and the means of establishing it do not provide any exception to the universal rule which excludes out of court admissions being used to provide evidence against a co-accused, whether indicted jointly or separately’ and ‘In his summing-up the learned recorder left the jury with the clear impression that they could, if they wished, rely upon Fairey’s admissions to prove the wounding, not only against him but against the appellant. In doing so there was a plain misdirection.’
Watkins LJ, Kilner Brown and Russell JJ
[1982] 1 All ER 587
Criminal Law Act 1967 4(1)
England and Wales
Cited by:
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Persad v Trinidad and Tobago PC 23-Jul-2007
(Trinidad and Tobago) The Board considered the admissibility of out of court admissions as against co-defendants. Three defendants faced allegations of a series of violent crimes. The appellant said the only evidence against him for an offence of . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.222542

The majority decision of the House in Myers v DPP ‘established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule.’ and ‘Hearsay evidence is not excluded because it has no logical probative value . . The rationale of excluding [hearsay] as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability in cross-examination . . The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve.’
Lord Bridge of Harwich
[1986] AC 41, [1985] 2 All ER 1095, [1985] 3 WLR 345, (1985) 81 Cr App R 266
England and Wales
Citing:
Cited – Myers v Director of Public Prosecutions HL 1965
Limits to Admission of Hearsay Evidence
It was not for the House to alter the admissibility of hearsay evidence on a case by case basis.
Lord Reid said: ‘I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to . .

Cited by:
Cited – Regina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
Cited – Cole and Another v Regina CACD 30-Jul-2007
. .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.222548