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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Criminal Evidence - From: 1985 To: 1989

This page lists 20 cases, and was prepared on 21 May 2019.

 
Regina v Blastland [1986] AC 41; [1985] 2 All ER 1095; [1985] 3 WLR 345; (1985) 81 Cr App R 266
1985
HL
Lord Bridge of Harwich
Criminal Evidence
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 "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."
1 Cites

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 Regina v Pettman; CACD 2-May-1985 - Unreported, 2 May 1985
 
Regina v Raviraj (1986) 85 Cr App 93
1986
CACD
Stocker LJ
Criminal Evidence
The court described the circumstances where a defendant's failure to provide an account of circumstances might lead to an inference being drawn against him: "where suspicious circumstances appear to demand an explanation, and no explanation . . . is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant."
1 Cites

1 Citers


 
Regina v Williams (1986) 84 Cr App R 299; [1987] 3 All ER 411
1986
CACD

Criminal Evidence
The defendant was charged with threatening to kill. Held: Evidence of previous threatening and violent conduct of Williams towards the victim was rightly admitted to establish an intention on the part of the defendant that the victim should fear that the threat to kill would be carried out.
1 Cites

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Fox v Chief Constable of Gwent [1986] 1 AC 281; [1985] 3 All ER 392; [1985] 1 WLR 1126; [1985] RTR 337; [1986] Crim LR 59; (1985) 82 Cr App R 105; (1985) 150 JP 97
1986
HL
Lord Bridge, Lord Fraser of Tullybelton
Road Traffic, Criminal Evidence
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 there was no general principle that there could be no conviction under section 6(1) if the evidence by which it was sought to prove the offence had been obtained unlawfully; On the true construction of section 10(2), the admissibility of a specimen of breath, blood or urine in proceedings for an offence under sections 5 or 6 depends on the procedure prescribed by the new section 8 for obtaining such a specimen having been correctly followed.
Lord Fraser of Tullybelton stated: "It is a well established rule of English law, which was recognised in Reg. v. Sang, that (apart from confessions as to which special considerations apply) any evidence which is relevant is admissible even if it has been obtained illegally."
Road Traffic Act 1972 8(6) 10(2)
1 Cites

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 Regina v Spencer; Regina v Smails; HL 24-Jul-1986 - [1987] AC 128; [1987] UKHL 2; [1986] 3 WLR 348; [1986] 83 Cr App Rep 277; [1986] 2 All ER 928
 
Unterpertinger v Austria 9120/80; [1986] ECHR 15; (1986) 13 EHRR 175; [1986] ECHR 15
24 Nov 1986
ECHR

Human Rights, Criminal Evidence
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not be cross-examined on their statements. Held: Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6. The reading out of statements of witnesses without the witness being heard in a public hearing could not be regarded as being inconsistent with Article 6(1) and 3(d) of the Convention but it went on to emphasise that the use made of this in evidence had nevertheless to comply with the rights of the defence which it was the object and purpose of Article 6 to protect. This meant that, in principle, the accused had to be given a proper and adequate opportunity to challenge and question a witness against him either when the witness made the statement or at a later stage.
European Convention on Human Rights 6
1 Citers

[ Bailii ] - [ Bailii ]

 
 Regina v Andrews; HL 1987 - [1987] 1 AC 281; (1987) 84 Cr App R 382; [1987] 2 WLR 413; [1987] 1 All ER 513
 
Regina v Junaid Khan [1987] 84 CAR 45
1987
CACD

Criminal Evidence
The court was asked whether a wife under an (actually) polygamous marriage, entered into under the rites of the Moslem religion, was competent to give evidence against her husband. It was conceded that "in English law generally" the lady was not the co-accused's wife; but even so, it was argued, she was to be treated as his wife for the purposes of the common law principle that a wife is not a competent witness against her husband. Held: The common law principles relating to competence applied. However: ""If that be the position with somebody who has gone through an invalid ceremony of marriage because it is bigamous, what is the position of a lady who has gone through a ceremony of marriage which under the religious observances of a faith, and under the law of some other countries, is entirely valid, but which, because it is a second polygamous marriage, is of no effect in the law of this country? In our judgment the position so far as her ability and competence to give evidence is concerned is no different from that of a woman who has not been through a ceremony of marriage at all, or one who has been through a ceremony of marriage which is void because it is bigamous. Exactly the same principles in our view apply, and therefore we hold that the learned judge was entirely correct in his reasoning in deciding that Hasina Patel was a competent witness for the prosecution, both in respect of her husband and in respect of this appell"
Matrimonial Causes Act 1973 11
1 Citers


 
Regina v Hunt (Richard) [1987] 1 AC 352; (1986) 84 Cr App R 163; [1986] 3 WLR 1115; [1987] AC 352; [1987] 1 All ER 1
1987
HL
Lord Griffiths, Lord Ackner
Criminal Evidence
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that "the discharge of an evidential burden proves nothing - it merely raises an issue". The House emphasised the special nature of the provisions, saying there was little doubt that the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant outside the formulation of this case were likely to be exceedingly rare. Where it was not clear that a statute imposed a burden of proof on a defendant, the court should look to the mischief sought to be remedied by the Act.
Lord Ackner said that the phrase "statutory exception" is not limited to express statutory exception but extends to the imposition by Parliament of such a burden of proof "either expressly or by necessary implication" which included not only the necessary implication contained within section 101 of the Magistrates Courts Act 1980 ("Where the defendant to an information . . relies for his defence on any exception, exemption, proviso, excuse or qualification . . the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him …") but also to trials on indictment.
Lord Griffiths said that: "I would summarise the position thus far by saying that Woolmington [1935] AC 462 did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided: that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly: that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.
The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided. It presents particularly difficult problems of construction when what might be regarded as a matter of defence appears in a clause creating the offence rather than in some subsequent proviso from which it may more readily be inferred that it was intended to provide for a separate defence which a defendant must set up and prove if he wishes to avail himself of it. "
Lord Griffiths then analysed the case of Nimmo saying: "The question before the House was whether the burden of proving that it was not reasonably practicable to make the working place safe lay upon the defendant or the plaintiff in a civil action. However, as the section also created a summary offence the same question would have arisen in a prosecution. In the event, the House divided three to two on the construction of the section, Lord Reid and Lord Wilberforce holding that the section required the plaintiff or prosecution to prove that it was reasonably practicable to make the working place safe, the majority, Lord Guest, Lord Upjohn and Lord Pearson, holding that if the plaintiff or prosecution proved that the working place was not safe it was for the defendant to excuse himself by proving that it was not reasonably practicable to make it safe. However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute."
Magistrates Courts Act 1980 101
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 Regina v Nazif; 1987 - [1987] 2 NZLR 122
 
Regina v Berry (1987) 84 Cr App R 98
1987
CACD

Criminal Evidence
The court doubted the use of past incidents for the purpose of proving the state of mind, ie the intent, of a defendant charged with murder
1 Citers


 
Regina v Gale Unreported 1987
1987
CACD

Criminal Evidence
The defendant had taken indecent photographs of his young step-daughter. By defence he claimed that he had done so for artistic purposes at the instigation of his wife. Held: It had been proper to admit evidence that he had written pornographic fantasies to describe, in a manner which bore a close resemblance to the very type of incident which the girl had herself described, the sexual initiation of a young girl by her father.
1 Citers



 
 Regina v Lydon; CACD 1987 - (1987) 85 Cr App R 221
 
Regina v Sekhon (1987) 85 Cr App R 19
1987
CACD

Criminal Evidence
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 the witness box. Held: Such a log, which was a memory-refreshing document, must be available for inspection by other parties for the purpose of cross-examination, and where it was suggested that the witness was making up his evidence and had concocted his notes, the notes might be admissible to show consistency. Generally however, the notes are not admissible to prove the truth of their contents and are relevant only to credibility.
The Court set out a series of propositions concerning documents used to refresh memory. It considered the police log admissible but described it as a "tool" to assist the jury to evaluate the truth of the evidence given in the witness box by the witness. It went on to say: "Although normally the document when admitted is not evidence of the truth of its contents, in those cases where it provides, because of its nature, material by which its authenticity can be judged, then in respect of that material and only for the purpose of assessing its authenticity it can amount to evidence in the case."
1 Citers


 
Regina v Weekes [1988] Crim LR 244
1988


Criminal Evidence

1 Citers


 
Regina v Alladice (1988) 87 Cr App R 380
1988
CACD

Criminal Evidence
The defendant had been denied access to a solicitor at interview. He appealed against his conviction, saying his confession should not have been admitted, having been obtained by duress. Held: Although there had been breaches of the Act and of the Codes of Practice, they were not such as to render the admission of the confession unfair. The defendant had shown himself well capable of handling the interviews.
1 Citers


 
Schenk v Switzerland 10862/84; [1988] ECHR 17; (1988) 13 EHRR 242
12 Jul 1988
ECHR

Human Rights, Criminal Evidence
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man. Held: The ECHR does not address issues about the admissibility of evidence in the abstract or to deal with them as issues of principle. Article 6 simply guarantees the right to a fair trial and that admissibility of evidence was primarily a matter for regulation under national law. The Court added: "The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk's trial as a whole was fair."
The Court noted that the rights of the defence were respected: the applicant had the opportunity of challenging the authenticity of the recording and of opposing its use. The defence had been able to secure an investigation of the background of the relevant witness and could have examined him in court. In addition, the Court attached weight to the fact that the recording was not the only evidence on which the applicant's conviction was based and that the domestic court had expressly said that it had relied on evidence, other than the recording, which pointed to the applicant's guilt.
Rules about the admissibility of evidence are for the contracting states: "While article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk's trial as a whole was fair."
European Convention on Human Rights 6.1 6.2 8
1 Citers

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 Regina v Wilmot; CACD 1989 - (1989) 89 Cr App R 341

 
 Regina v Windass; CACD 1989 - (1989) 89 Cr App Rep 258
 
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