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Louise Ellison
CRIMINAL EVIDENCE 2002
WITNESSES
Dennis, The Law of Evidence (2002) pp 430-495
1. Competence and Compellability
Youth Justice and Criminal Evidence Act 1999 ('YJCEA')
53(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
53(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a
person who is able to-
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
54(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is
competent to give evidence in the proceedings.
(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there
is one).
(5) Expert evidence may be received on the question.
A. Accused
YJCEA 53(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for
the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
Criminal Evidence Act 1898 section 1 Every person charged with an offence shall be a competent witness for the
defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any
other person. Provided as follows:
(1) A person so charged shall not be called as a witness in pursuance to this Act except upon its own application ...
This proviso was undermined by the Criminal Justice and Public Order Act 1994 section 35(2)
... the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on
indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence
can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give
evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the
court or the jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without
good cause, to answer any question.
(3) ... the court or jury, in determining whether the accused is guilty of the offence charged, may draw such
inferences as appear proper from the failure of the accused to give evidence or his failure, without good cause, to
answer any question.
B. Spouse of the Accused
Khan (1986) 84 Cr App Rep 44
Hoskyn v MPC [1979] AC 474
Police and Criminal Evidence Act 1984 ('PACE') (as amended by YJCEA 1999)
Section 80(2) In any proceedings the wife or husband of a person charged in proceedings shall, subject to
subsection (4) below, be compellable to give evidence on behalf of that person.
Section 80(2A) In any proceedings the wife or husband of a person charged in proceedings shall, subject to
subsection (4) below, be compellable -
(a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified
offence with which that other person is charged; or
(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is
charged in the proceedings.
Section 80(3) In relation to the wife or husband of a person charged in any proceedings, an offence is a specified
offence for the purposes of subsection 2A above if -
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(a) it involves an assault on, or injury or a threat of injury to, the wife or husband of the accused, or a person who
was at the material time under the age of 16, or
(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under
that age, or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the
commission of an offence falling within paragraph (a) or (b) above.
Section 80(4) No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or
(2A) above to give evidence in the proceedings.
C. Former Spouses
PACE section 80(5) In any proceedings a person who has been but is no longer married to the accused shall be
competent and compellable to give evidence as if that person and the accused had never been married.
D. Sworn and Unsworn Evidence
YJCEA section 55(2) The witness may not be sworn for that purpose unless-
(a) he has attained the age of 14, and
(b) he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the
truth which is involved in taking an oath.
(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of
those matters if no evidence tending to show the contrary is adduced (by any party).
(8) For the purposes of this section a person is able to give intelligible testimony if he is able to-
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
Reception of unsworn evidence.
Section 56(1) Subsections (2) and (3) apply to a person (of any age) who-
(a) is competent to give evidence in criminal proceedings, but
(b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such
proceedings.
(2) The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.
Penalty for giving false unsworn evidence.
Section 57(2) If such a person wilfully gives false evidence in such circumstances that, had the evidence been
given on oath, he would have been guilty of perjury.
2. Oaths and Affirmations
Oaths Act 1978
Perjury Act 1911 s1
Kemble [1990] 1 WLR 1111
EXAMINATION OF WITNESSES
Dennis, The Law of Evidence (2002) pp 430-495
1. Examination-in-chief
A. Leading Questions
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B. Previous Consistent Statements- (the rule against narrative)
Roberts [1942] 1 All ER 187
Complaints in Sexual Cases
Lillyman [1896] 2 QB 167
Osborne [1905] 1 KB 551
'If the circumstances indicate that but for the questioning there probably would have been no voluntary complaint,
the answer is inadmissible. If the question merely anticipates a statement the complainant was about to make, it is
not rendered inadmissible by the fact that the questioner happens to speak first.'
Cummings [1948] 1 All ER 551
Valentine [1996] 2 Cr App R 213
'What is the first reasonable opportunity will depend on the circumstances including the character of the
complainant and the relationship between the complainant and the person to whom she complained and the
persons to whom she might have complained but did not do so. It is enough if it is the first reasonable
opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint,
provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected.' per
Roch LJ
Wallwork (1958) 42 Cr App R 153
Islam [1999] 1 Cr App R 22
Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, 1997
(paragraph 10.60): We recommend that, where
(1) a witness claims to be a person against whom an offence to which the proceedings relate has been committed,
(2) the witness has made a previous statement which consists of a complaint about conduct which would, if
proved, constitute the offence or part of the offence,
(3) the complaint was made as soon as could reasonably be expected after the alleged conduct,
(4) the complaint was not made as a result of a threat or a promise,
(5) before the statement is adduced the witness gives oral evidence in connection with its subject matter, and
(6) while giving evidence the witness indicates that, to the best of his or her belief, he or she made the statement
and it states the truth, the statement should be admissible as evidence of any matter stated of which oral
evidence by the witness would be admissible (Recommendation 36).
C. Hostile Witnesses
Criminal Procedure Act 1865 section 3 A party producing a witness shall not be allowed to impeach his credit by
general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse,
contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement
inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the
supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must
be asked whether or not he has made such statement.
Greenough v Eccles (1859) 28 LJCP 160
Thompson (1976) 64 Cr App R 96
2. Cross-Examination
Code of Conduct of the Bar of England and Wales
Mechanical and General Inventions Co. Ltd and Lehwess v Austin and Austin Motor Co. Ltd
[1935] AC 346
Hobbs v Tinling [1929] 2 KB 1
Criminal Evidence Act 1898 s 1(f)
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A. Finality of Answers on Collateral Matters
A-G v Hitchcock (1847) 1 Exch 91
'The test whether a matter is collateral or not is this: if the answer of the witness is a matter which you would be
allowed on your own part to prove in evidence - if it have such a connection with the issues, that you would be
allowed to give it in evidence - then it is a matter on which you may contradict him.'
Funderburk [1990] 2 All ER 482
Exceptions
(i) Previous Inconsistent Statements
Criminal Procedure Act 1865 section 4 If a witness, upon cross-examination as to a former statement made by
him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony,
does not distinctly admit that he has made such a statement, proof may be given that he did indeed make it, but
before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular
occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement.
Section 5 A witness may be cross-examined as to previous statements made by him in writing or reduced into
writing relative to the subject matter of the indictment or proceedings, without such writing being shown to him;
but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof
can be given, be called to those parts of the writing which are to used for the purpose of so contradicting him;
provided always, that it shall be competent for the judge, at any time during the trial, to require the production of
the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may
think fit.
(ii) Previous Convictions
Criminal Procedure Act 1865 section 6 A witness may be questioned as to whether he has been convicted of
any misdemeanour, and upon being so questioned, if he either denies or does not admit the fact, or refuses to
answer, it shall be lawful for the cross-examining party to prove such conviction.
(iii) Bias
Mendy (1976) 64 Cr App R 4
(iv) Evidence of Physical or Mental Disability Affecting Reliability
Toohey v Metropolitan Police Comr [1965] AC 595
'...when a witness through physical or mental disease or abnormality is not capable of giving a true or reliable
account to the jury it must be allowable for medical science to reveal this vital hidden fact to them.'
(v) Reputation for Untruthfulness
Richardson and Longman (1968) 52 Cr App R 317
3. Re-examination
Further reading:
Creighton, 'Spouse Competence and Compellability' [1990] Crim LR 34
Cretney, Davis, 'The Significance of Compellability in the Prosecution of Domestic Assault'
(1997) 37 Brit J Criminol 75
Gooderson, 'Previous Consistent Statements' (1968) 26 Cambridge Law Journal, 64.
Newark, 'The Hostile Witness and the Adversary System' [1986] Crim LR 441
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VULNERABLE AND INTIMIDATED WITNESSES
Dennis, The Law of Evidence (2002) pp 496-524
1. Background
Smellie (1919) 14 Cr App Rep 128
X Y Z (1989) 91 Cr App Rep 36
Criminal Justice Act 1988 section 32
Home Office, Report of the Advisory Group on Video Evidence (1989)
Criminal Justice Act 1988, section 32A (inserted by CJA 1991 section 54)
Doorson v The Netherlands (1996) 22 EHRR 330:
'It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called
upon to testify in particular, to be taken into consideration. However, the life, liberty, or security of a person may
be at stake as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of
witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply
that Contracting States should organise their criminal proceedings in such a way that those interests were not
unjustifiably imperilled. Against this background, principles of a fair trial also require that in appropriate cases, the
interests of the defence are balanced against those of witnesses or victims called upon to testify.'
Recommendation No. R (97) 13 on Intimidation of Witnesses and the Rights of the Defence
Council Framework Decision of 15th March 2001 on the standing of victims in criminal
proceedings
Home Office, Speaking up for Justice: Report of the Interdepartmental Working Group on the
Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (1998)
2. Youth Justice and Criminal Evidence Act 1999
A. Special Measures
Screening witness from accused
Section 23(1) A special measures direction may provide for the witness, while giving testimony or being sworn in
court, to be prevented by means of a screen or other arrangement from seeing the accused.
(2) But the screen or other arrangement must not prevent the witness from being able to see, and to be seen by-
(a) the judge or justices (or both) and the jury (if there is one);
(b) legal representatives acting in the proceedings; and
(c) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
Evidence by live link
24(1) A special measures direction may provide for the witness to give evidence by means of a live link.
Evidence given in private
25(1) A special measures direction may provide for the exclusion from the court, during the giving of the witness's
evidence, of persons of any description specified in the direction.
Removal of wigs and gowns
26(1) A special measures direction may provide for the wearing of wigs or gowns to be dispensed with during the
giving of the witness's evidence.
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Video recorded evidence in chief
27(1) A special measures direction may provide for a video recording of an interview of the witness to be admitted
as evidence in chief of the witness.
Home Office, Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or
Intimidated Witnesses, including Children (2000)
Video recorded cross-examination or re-examination
28(1) Where a special measures direction provides for a video recording to be admitted under section 27 as
evidence in chief of the witness, the direction may also provide-
(a) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video
recording; and
(b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as
evidence of the witness under cross-examination or on re-examination, as the case may be.
Examination of witness through an intermediary
29(1) A special measures direction may provide for any examination of the witness (however and wherever
conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this
section ('an intermediary').
(2) The function of an intermediary is to communicate-
(a) to the witness, questions put to the witness, and
(b) to any person asking such questions, the answers given by the witness in reply to them,
and to explain such questions or answers so far as necessary to enable them to be understood by the witness or
person in question.
Ellison, ‘Cross-examination and the Intermediary: Bridging the Language Divide? [2002]
Criminal Law Review 114
Aids to communication
30 A special measures direction may provide for the witness, while giving evidence (whether by testimony in
court or otherwise), to be provided with such device as the court considers appropriate with a view to enabling
questions or answers to be communicated to or by the witness despite any disability or disorder or other
impairment which the witness has or suffers from.
Warning to jury.
32 Where on a trial on indictment evidence has been given in accordance with a special measures direction, the
judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the
direction was given in relation to the witness does not prejudice the accused.
B. Eligibility
Witnesses eligible for assistance on grounds of age or incapacity
16(1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for
assistance by virtue of this section-
(a) if under the age of 17 at the time of the hearing; or
(b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of
any circumstances falling within subsection (2).
(2) The circumstances falling within this subsection are-
(a) that the witness-
(i) suffers from mental disorder within the meaning of the Mental Health Act 1983, or
(ii) otherwise has a significant impairment of intelligence and social functioning;
(b) that the witness has a physical disability or is suffering from a physical disorder.
Witnesses eligible for assistance on grounds of fear or distress about testifying
17 (1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for
assistance by virtue of this subsection if the court is satisfied that the quality of evidence given by the witness is
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likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the
proceedings.
2) In determining whether a witness falls within subsection (1) the court must take into account, in particular- (a)
the nature and alleged circumstances of the offence to which the proceedings relate;
b) the age of the witness;
(c) such of the following matters as appear to the court to be relevant, namely-
(i) the social and cultural background and ethnic origins of the witness,
(ii) the domestic and employment circumstances of the witness, and
(iii) any religious beliefs or political opinions of the witness;
(d) any behaviour towards the witness on the part of-
(i) the accused,
(ii) members of the family or associates of the accused, or
(iii) any other person who is likely to be an accused or a witness in the proceedings.
(3) In determining that question the court must in addition consider any views expressed by the witness.
Sexual offence complainants
(4) Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to
that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue
of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of
this subsection.
Child witnesses
21(1) For the purposes of this section-
(b) a child witness is 'in need of special protection' if the offence (or any of the offences) to which the proceedings
relate is-
(i) an offence falling within section 35(3)(a) (sexual offences etc.), or
(ii) an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); and
(3) The primary rule in the case of a child witness is that the court must give a special measures direction in
relation to the witness which complies with the following requirements
(a) it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief);
and
(b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a
video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 24.
(4) The primary rule is subject to the following limitations-
(a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning
of section 18(2) of the special measure in question in relation to the witness;
(b) the requirement contained in subsection (3)(a) also has effect subject to section 27(2); and (c) the rule does not
apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of
the witness's evidence so far as practicable (whether because the application to that evidence of one or more other
special measures available in relation to the witness would have that result or for any other reason).
(5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.
(6) Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures
direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition
provide for the special measure available under section 28 (video recorded cross-examination or re-examination)
to apply in relation to-
(a) any cross-examination of the witness otherwise than by the accused in person, and
(b) any subsequent re-examination.
(7) The requirement contained in subsection (6) has effect subject to the following limitations-
(a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation
to the witness; and
(b) it does not apply if the witness has informed the court that he does not want that special measure to apply in
relation to him.
C. Procedure
19(1) This section applies where in any criminal proceedings-
(a) a party to the proceedings makes an application for the court to give a direction under this section in relation to
a witness in the proceedings other than the accused, or
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(b) the court of its own motion raises the issue whether such a direction should be given.
(2) Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court
must then-
(a) determine whether any of the special measures available in relation to the witness (or any combination of them)
would, in its opinion, be likely to improve the quality of evidence given by the witness; and (b) if so-
(i) determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far
as practicable the quality of such evidence; and
(ii) give a direction under this section providing for the measure or measures so determined to apply to evidence
given by the witness.
(3) In determining for the purposes of this Chapter whether any special measure or measures would or would not
be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court
must consider all the circumstances of the case, including in particular-
(a) any views expressed by the witness; and
(b) whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the
proceedings.
D. Protection of witnesses from cross-examination by accused in person
Complainants in proceedings for sexual offences
34 No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness
who is the complainant ...
Child complainants and other child witnesses
35(1) No person charged with an offence to which this section applies may in any criminal proceedings cross-
examine in person a protected witness...
Direction prohibiting accused from cross-examining particular witness
36(2) If it appears to the court-
(a) that the quality of evidence given by the witness on cross-examination-
(i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in
person, and
(ii) would be likely to be improved if a direction were given under this section, and
(b) that it would not be contrary to the interests of justice to give such a direction, the court may give a direction
prohibiting the accused from cross-examining (or further cross-examining) the witness in person.
E. Sexual History Evidence
(i) Background
Sexual Offences (Amendment) Act 1976 section 2(1) If at trial any person for the time being charged with a rape
offence to which he pleads not guilty, then except with the leave of the judge no evidence and no question in cross
examination shall be adduced or asked at trial by or on behalf of any defendant at the trial about any sexual
experience of a complainant with a person other than the defendant
(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on
an application made to him in the absence of the jury by or on behalf of the defendant; and on such an application
the judge shall grant leave if and only if he is satisfied that it would be unfair to the defendant to refuse to allow
the evidence to be adduced or the question to be asked.
Lawrence [1977] Crim LR 492
Viola [1982] 3 All ER 73
Brown (1988) 89 Cr App R 97
Bogie [1992] Crim LR 301
S.M.S [1992] Crim LR 310
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(ii) Criticism
Adler 'Rape- the Intention of Parliament and the Practice of the Courts' (1982) 45 MLR 664,
Ellison 'Cross-examination in Rape Trials' [1998] Crim LR 605
McColgan, 'Common Law and the Relevance of Sexual History Evidence' (1996) 16 OJLS 275
Home Office, Speaking Up for Justice (1998):
'... there is overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law
is not achieving its purpose.' (paragraph 9.64)
(iii) Youth Justice and Criminal Evidence Act 1999
Restriction on evidence or questions about complainant's sexual history
41(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court-
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual
behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf
of an accused, and may not give such leave unless it is satisfied-
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be)
the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either-
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates
is alleged to have taken place at or about the same time as the event which is the subject matter of the charge
against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates
is alleged to have been, in any respect, so similar-
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on
behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused,
or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the
same time as that event, that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in
the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would
be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
A [2002] 1 AC 45
Further reading:
Birch, ‘A Better Deal for Vulnerable Witnesses?’ [2000] Criminal Law Review, 231
Birch, ‘Rethinking sexual history evidence: proposals for fairer trials’ [2002] Criminal Law
Review 531
Hoyano, ‘Variations on a theme by Pigot: Special Measures directions for child witnesses’
[2000] Criminal Law Review, 250
Hoyano, ‘Striking a balance between the rights of defendants and vulnerable witnesses: will
special measures directions contravene guarantees of a fair trial?’ [2001] Criminal Law Review
948
Kibble, ‘The sexual history provisions: charting a course between inflexible legislative rules
and wholly untrammelled judicial discretion?’ [2000] Criminal Law Review, 274
McEwan, ‘In defence of vulnerable witnesses: the Youth Justice and Criminal Evidence Act
1999’ (2000) 4 International Journal of Evidence and Proof, 29
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