LLB: LAW of EVIDENCE 2011-2012 [M3025]

Faculty : Jim McGregor (Convenor)

“The good of the people is the chief law” Cicero (Roman orator, lawyer & statesman)

TeachingTeaching will be in lectures and seminars which will be fully participative. All students are expected to have read in advance both for lectures and seminars and to be thoroughly prepared.

In this second term, all lectures will be given weekly by Jim McGregor starting in week 2 on Monday 16 January 2012. Seminars start in week 1.

Please remember that the introductory points in your autumn term handbook remain valid. For ease of reference, however, some material is reproduced below.

Learning OutcomesStudents will be expected:1. to know and understand the main doctrines of evidence law and their

underlying theory2. to have a critical awareness of the aims and functions of evidence law and

of the principles, policies and assumptions which shape the law3. to be able to apply a knowledge of evidence law accurately to the solution

of problems and to be able to present reasoned argument on doubtful or controversial points

4. to be able to write about issues in the law of evidence in an informed, coherent and critical way

5. to be able to undertake independent study of an issue in evidence law using library resources

Assessment and CreditsThe course will be examined by a three hour open book examination (50%) which will assess learning outcomes 1-4. Students will be expected to answer three questions. A choice of questions will be given. The examination paper is divided into two sections. Part A will contain essay questions, Part B will contain problem questions. Students will be required to answer at least one question from each part.

Students will also be expected to submit a 4000 word essay (50%) which will assess learning outcomes 1, 2, 4 and 5. Students will select a title of their own but it must be agreed with Jim McGregor by week 10 Spring term and will be due early in the summer term (usually May). Students are advised to discuss the topic before embarking on research. NB: All your work must be fully and properly referenced to avoid falling foul of the plagiarism rules.

This is a 30 credit course.

Student FeedbackStudents are encouraged to offer constructive suggestions on how the course is taught and its content at any stage during the course. Faculty take careful note of all constructive suggestions, not least to ensure that future courses reflect, wherever possible, the views of those who have just completed their study of the subject.

Students will find the cases reported and analysed in the Criminal Law Review each month particularly useful. The International Journal of Evidence and Proof is also a very good source of material. Please bear in mind, too, that the 2010 edition of Roberts & Zuckerman’s ‘Criminal Evidence’ does contain some very useful and scholarly material on some of the heavyweight topics covered in your course. You may find it helpful as part of your research and preparation for the formal assessment stages.

Textbooks and the Library.SLS and the library are keen to ensure that the library facilities and resources provide as much support to law students as possible. We aim, therefore, to spend the annual law library budget in manner which best meets the needs of high level study. Where financial constraints are an issue, SLS aims to prioritise the provision of law reports, journals and other expensive resources to which you would not otherwise have access. We also maintain access to the three major electronic law databases: Lawtel, LexisNexis Butterworths and Westlaw. These resources play a vital role in our law teaching and are available to you both on and off campus.

SLS takes the view that to study effectively and efficiently it is also crucial that you have ready access to one of the core course textbooks. That is why you should buy at least one textbook per subject. It is SLS policy to keep only a small number of this type of text in the short loan section of the library. (To keep costs to a minimum, and increase the range of books that you have access to, you might explore the feasibility of sharing books).

**Restricted Open Book Examination

Students are allowed to take in any material except that which contains model answers. This means that Question & Answer books and any other publications or copies thereof containing such material are NOT permitted in the examination room. This restriction will be strictly enforced and materials being taken in to the examination room will be checked. All students will be required at an early stage to confirm that they have been advised of this restriction.

Students are encouraged to check with the convenor if they are in any doubt about the admissibility of any material but they must do so prior to the examination date itself.

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Law of Evidence: Order of teaching for the academic year

Introduction

Key issues history development definitions forms of evidence exclusion of evidence influence of human rights

Presumption of Innocence

Burden & Standard of Proof

Privilege against self-incrimination

Right of Silence and Adverse Inferences at investigation stage in court

Confessions

Identification......................................................................(Spring Term 2012)

Improperly-obtained evidence

Witnesses competence & compellability corroboration vulnerable witnesses & special measures sexual history evidence-in-chief, cross-examination & re-examination hostile witnesses expert evidence

Character evidence the accused persons other than the accused the ‘old’ law CJA 2003 Developing CJA case-law

Hearsay the common law statutory provisions pre-CJA 2003 CJA 2003 Developing CJA case-law

Witnesses

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Evidence on oath

Competence and compellability

Corroboration

Vulnerable witnesses & special measures

Sexual history

Evidence-in-chief

Cross-examination

Re-examination

Unfavourable witnesses

Hostile witnesses

Expert evidence

WITNESSES & THE COURSE OF EVIDENCE

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READING Dennis (2010), chs 13-15 Cross & Tapper (2010), ch 5 Roberts & Zuckerman (2010), chs 7, 8, 10 & 15

Further readingHome 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, London)

Sworn testimony Oaths Act 1978 Kemble [1990] 1 WLR 1111 Competence MacPherson [2005] EWCA Crim 3605 Powell [2006] EWCA Crim 3 Anwar [2008] EWCA Crim1354

Compellability R v L [2008] EWCA Crim 973

CorroborationMakanjuola [1995] 3 All ER 730R v R [1996] Crim LR 815R v L [1999] Crim LR 489Warwick Muncaster [1999] Crim LR 409 R v B(MT) [2000] Crim LR 181Faryab [2000] Crim LR 180 (Lucas direction)

Lies by accused Lucas (1981) QBD 720, CA Vulnerable witnesses & Special Measures Articles 5 & 8, European Convention on Human Rights Doorson v Netherlands (1996) 22 EHRR 330 Youth Justice and Criminal Evidence Act 1999, ss 16-43 Camberwell Green Youth Court [2005] 2 Cr App R 1 R v K [2006] EWCA Crim 3 *Davis (Iain) [2008] 1 AC 1128 Criminal Evidence (Witness Anonymity) Act 2008 Mayers [2008] EWCA Crim 2989 Coroners and Justice Act 2009, ch 2 (ss 86-93) Ormerod, Choo & Easter [2010] Crim LR 368 “Coroners and Justice Act 2009: the “witness anonymity” and “investigation anonymity” provisions Sexual history

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Youth Justice and Criminal Evidence Act, ss 41-43

R v Henry and Manning 53 Cr App R 150 *R v A (No 2) [2002] 1 AC 45; [2001] 3 All ER 1 R v MH; R v RT [2002] 1 WLR 632 R v Stephenson [2002] EWCA Crim 1231 R v White [2004] EWCA Crim 946 R v Mukadi [2004] Crim LR 373 R v E [2005] Crim LR 227 R v F [2005] Crim LR 564; [2005] 2 Cr App R 13 R v TW [2005] Crim LR 965 R v Beedall [2007] EWCA Crim 23 R v Hamadi [2007] EWCA Crim 3048 R v PK [2008] EWCA Crim 434 Birch, D [2000] Crim LR 223 “A Better Deal for Vulnerable Witnesses” Kibble,N [2005] Crim LR 190 “Judicial Perspectives on the Operation of s41 and the Relevance and Admissibility of Prior Sexual History Evidence: Four Scenarios’ Kibble, N [2008] Crim LR 971 “Criminal evidence: sexual history evidence - cross-examination” Home Office On-Line Report 20/06 Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials. Kelly, Temkin & Griffiths Temkin & Krahe (2008) Oxford Sexual Assault and the Justice Gap: A Question of Attitude

Cross-examination Browne v Dunn (1894) 6 R. 67

Prior Inconsistent Statement (s119 CJA 2003)Johnson v R [2007] EWCA Crim 1651

Collateral-finality rule Attorney-General v Hitchcock (1847) 1 Exch 91 Mendy [1977] Cr App R 4 Busby [1985] 75 Cr App R 79 Funderburk [1990] 90 Cr App R 466

Nagrecha [1997] 2 Cr App R401 Neale [1998] Crim LR 737

Hostile WitnessesHoneyghon and Sayles [1999] Crim LR 221.

Re-examination Ali(H) [2004] Crim LR 300

The role of the judge

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Michel v The Queen (2009) Times Law Reports, 9 November

Expert EvidenceSilverlock (1894) 2QB 766Turner [1975] QB 834Bonython [1984] 38 SASR 45Masih [1986] Crim LR 395Robb [1991] 93 Cr App R 161Stockwell 1993] 97 Cr App R 260Stagg [1994] 14 Sept (unreported)Dallagher [2003] 1 Cr App R 195O’Doherty [2003] 1 Cr App R 5Clark [2004] EWCA Crim 1020Cannings [2004] EWCA Crim 1Luttrell [2004] 2 Cr App R 31

Law Commission ‘Expert Evidence in Criminal Proceedings in England and Wales’ Law Com 325, March 2011

Competence, Compellability and Corroboration

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1 The English criminal trial relies heavily on the oral evidence of witnesses. What are the advantages and disadvantages of this approach?

2 What is meant by sworn evidence? Can evidence be given unsworn? Do perjury sanctions apply to unsworn witnesses?

3 What is the difference between competence and compellability?

4 What is the test for determining whether a child is competent to give evidence in a criminal trial? What about an adult with mental disability ?

5 Why is the accused not a competent witness for the prosecution?

6 An accused is not a compellable witness for the defence. Can you think of reasons why the accused might decide not to testify?

7 What is the law now if the accused chooses not to testify? What if the accused does decide to give evidence, takes the oath but then refuses to answer a question which is put to him?

8 Is the spouse of the accused a competent and compellable witness for the defence?

9 In what circumstances is a spouse a compellable witness for the prosecution? 10 There are two versions of corroboration in English law - is either generally an essential requirement?

11 Are there exceptions?

12 What is a Lucas direction and when should it be given?

Vulnerable witnesses and Special Measures

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1 In what circumstances can an adult witness be said to be vulnerable?

2 What steps have been taken to improve the lot of vulnerable adult witnesses?

3 What about children? What was held in R v Camberwell Green Youth Court? 4 Are special measures unfair to defendants? What happened in Davis?

Sexual history evidence

1 How were questions about the sexual history of the complainant dealt with before the intervention of ‘rape shield’ legislation?

2 What was the intention of the Sexual Offences (Amendment) Act 1976?

3 What was the effect of the report “Speaking Up For Justice”?

4 How did the relevant provisions of the Youth Justice and Criminal Evidence Act 1999 affect this area of evidence law?

5 How significant is R v A (no 2) ?

6 Consider Beedall in the light of R v A (No 2).

7 What does R v PK deal with?

8 Is the law now more settled and satisfactory?

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The course of evidence: evidence-in-chief, cross-examination & re-examination

1 In a criminal trial, to what extent can a judge a) call witnesses b) question witnesses? Consider Michel v The Queen (2009)

2 In examination-in-chief, the witness should not generally be asked leading questions. Why not? What is a leading question? Are there exceptions to this rule?

3 What is the difference between an unfavourable and a hostile witness?

4 What can be done about an unfavourable witness?

5 What can be done about a hostile witness? Do you agree with the approach of the Court of Appeal in Honeyghon and Sayles?

6 How has s119 of the CJA 2003 changed the law regarding the effect of previous inconsistent out of court statements of a hostile witness?

7 In what circumstances are complaints in sexual cases allowed to be admitted in examination-in-chief?

8 What is the impact of s120 CJA 2003?

9 How may a witness refresh his memory before going into court for examination-in-chief?

10 What are the aims of cross-examination?

11 Which parties may cross-examine a witness?

12 What are the two main types of cross-examination?

13 What is the purpose of cross-examination as to credit?

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14 How does s100 CJA 2003 change the old law? What is meant by “important explanatory evidence”? What should be taken into account in assessing probative value?

15 What limits are there to cross-examination?

16 What is the collateral finality rule? Explain the reason for it.

17 Provide examples of situations in which evidence has been allowed to rebut the evidence of a witness in cross-examination on the ground that the witness is biased. See R v Mendy.

18 Do you agree with the Court of Appeal’s decision in Funderburk that evidence should have been adduced to rebut a denial by the complainant about previous inconsistent statements relating to previous sexual activities? (Students will need to read the case in report)

18 Consider Nagrecha.

19 What restrictions exist to re-examination? Consider R v Ali.

Expert Evidence

1 What is ‘expert evidence’ and why is it permitted?

2 How does it differ from other evidence?

3 Why has it proved so troublesome?

4 What was so problematic about cases like Sally Clark?

5 How has the Law Commission recently attempted to address the problems which make this such a difficult area of evidence law?

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EVIDENCE OF CHARACTER

Nature of proceedings: civil or criminal

Good Character of the Defendant in Criminal Proceedings

Bad Character in Criminal Proceedings

The previous regime Pressure for change Government response Sections 98-113 CJA 2003 Definition of ‘Bad Character’

Bad Character of the Accused in Criminal Proceedings

The old law: common-law & statutory The prosecution & the ‘similar fact’ rule Cross-examination of the defendant The new law: CJA 2003 General rule The ‘gateways’ Developing case-law Clarity or confusion? Change: for better or worse?

Bad Character of Person other than the Defendant in Criminal Proceedings

The old law: common-law & statutory The new law: CJA 2003

EVIDENCE OF CHARACTER

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Reading

Dennis (2010) chs 14 (Cross-examination), 18 (pre-CJA law) & 19 (CJA)Roberts & Zuckerman (2010) ch 14Durston (2008) ch 5

Further reading

Law Commission “Evidence of Bad Character in Criminal Proceedings” (2001, No 273)

Dennis [2004] Crim LR 251 “The Criminal Justice Act 2003:Part 2”

Munday [2005] Crim LR 24 “What constitutes ‘other reprehensible behaviour?”

Munday [2005] Crim LR 337 “Bad character rules and riddles?”

Waterman & Dempster [2006] Crim LR 614 “Bad Character: Feeling Our Way One Year On”

Goudkamp [2008] 12 E & P 116 “Bad character evidence and reprehensible behaviour”

Mirfield [2009] Crim LR137 “Character and Credibility”

A: The Old Law*Makin v Attorney-General for New South Wales [1894] AC 57*DPP v Boardman [1975] AC 421*DPP v P [1991] 2AC447Smith [1915] 11 Cr App R 229Straffen [1952] 2QB 911R v H [1995] 2AC 596Barratt [2000] Crim LR 847R v Z [2000] 2AC 483Robinson [2001] Crim LR 478

B: Criminal Justice Act 2003

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*Hanson [2005] Crim LR 787Chohan 2005 Times Law Reports, 9 SeptemberBovell [2005] Crim LR790Edwards [2005] EWCA Crim 1813;[2006] 1Cr App.R.3.Somanathan [2005] EWCA Crim 2866*Weir; Manister [2005] EWCA Crim 2866Doherty [2006] EWCA Crim 2716Highton [2006] 1 Cr App R7; [2006] Crim LR 52Isichei [2006] EWCA Crim 1815Malone [2006] EWCA Crim 1860*Campbell [2007] EWCA Crim 1472Chopra [2007] 1 CrApp R225, CACox [2007] EWCA Crim 3365Donnelly [2007] EWCA Crim 3360Goddard [2007] EWCA Crim 3134Kordasinki [2007]1 Cr App R 238McMinn [2007] EWCA Crim 3024Musone [2007] 2 Cr App R 29Osbourne [2007] EWCA Crim481; Crim LR 712Reed & Williams [2007] EWCA CRIM3083Tirnaveanu [2007] 4 All ER 301Wallace [2008] Case Comment Archbold News 8, 1Doncaster [2008] EWCA Crim 5Ngyuen [2008] EWCA Crim 585; Crim LR 547 *Clements (2009) All ER (D) 261; Times Law Reports, 4 DecemberDavis [2009] 2 Cr App R 306Harris [2009] EWCA Crim 434

EVIDENCE OF CHARACTER

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IntroductionThe relevance, admissibility and significance of ‘character’ in court proceedings is determined by a number of factors. For our purposes, we are primarily concerned with bad character in criminal cases.

1 What do we mean by ‘character’?

2 How might it be evidenced?

3 What is the general approach by the courts to matters of good andbad conduct in civil proceedings?

4 In criminal proceedings why might the defendant seek to adducehis/her good character?

5 What does ‘good character’ mean? What was held not to be evidence of good character in Robinson?

6 How should the judge direct the jury on such matters? What is the leading case?

7 What is the relevance of Doncaster v R in relation to the pre-CJA key cases such as Aziz? 8 In terms of ‘bad character’ what was the regime in force prior to the

CJA 2003? How did the common law treat the divisibility of character?

9 What were the two trial stages at which bad character might be introduced?

10 Describe the general rule and exceptions

11 In terms of the defendant and the ‘similar fact’ rule, what was the significance of the cases of Makin; Boardman; & DPP v P?

12 How was change brought about?

13 Do we still have a ‘rule of exclusion’ under the CJA?

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14 How is ‘bad character’ now defined? Consider ss 98 & 112. What happened in R v Z? Is it still relevant?

15 How is misconduct further defined?

16 Is this helpful?

17 What are the ‘gateways’ ?

18 What is meant by ‘important explanatory evidence’?

19 What is meant by a ‘matter in issue between the defendant and the prosecution’?

20 What is significant about the wording of gateway (e)?

21 How do sections 102-106 relate to s101?

22 What is the significance of s108?

23 What is contamination?

24 Once evidence has been admitted under one of the gateways in s.101, to what uses may it be put according to the Court of Appeal in R v Highton and others. What steps did the Court of Appeal recommend to avoid unfairness?

25 How significant is Clements (2009)?

Bad character of persons other than the defendant

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1 What did the Court of Appeal in Somanathan have to say about the test for the admissibility of a person in this category?

2 Does section 100 apply to persons other than those actually called as witnesses?

3 What factors is the court required to consider when dealing with the bad character of such persons?

4 What is the likely overall effect on the cross-examination of non- defendant witnesses?

5 How is bias dealt with here?

HEARSAY

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Definition Scope Nature of the rule Common law exceptions Implied assertions Dying declarations Res gestae

Criminal Justice Act 2003: the new regime

Definition Admissibility Unavailability Business documents Preserved common law categories Refreshing memory Multiple hearsay Discretion to include or exclude

HEARSAY

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ReadingDennis (2010), chs 16 & 17Roberts & Zuckerman (2010), ch 9Cross & Tapper (2010), chs 12-14Durston (2008), ch 6

Subramaniam v Public Prosecutor [1956] 1 WLR 965, PCRice [1963] 1 QB 857Sparkes v R [1964]AC 964Myers v DPP [1965] AC1001Mawaz Khan [1967] 1 AC 454McLean (1967) Cr App R 80Osbourne and Virtue [1973] QB 678Blastland [1985] 2 All ER 1095Andrews [1987] AC 281Cook [1987]1All ER 1049Lydon [1987] Crim LRConstantinou (1990) 91 Cr App R 74Kearley [1992] 2 All ER 345Davis [1998] Crim LR 659Lawson [1998] Crim.L.R.883Thomas, Flanagan & others [1998] Crim LR 887Elliott [2000] Crim LR 51Ward [2001] Crim LR 316R v H [2001] All ER (D) 150 (Jun)Sed [2004] Crim LR 1036 and commentaryArnold [2005] Crim LR 56 and commentarySellick [2005] EWCA Crim722 [2005]1W.L.R.3257;[2005]Crim LR 722Al-Khawaja [2006] 1 All ER 543Grant v The Queen [2006] UKPC2Xhabri [2006] 1 All ER 776Davies [2007] 2 All ER 1070Gyima [2007]EWCA Crim 429Ishmael Adams [2007] EWCA Crim 3025McLean (Richard) [2007] EWCA Crim 219Musone [2007] EWCA Crim 1237R v L [2008] EWCA Crim 973R v Y [2008] EWCA Crim 10Al-Khawaja v UK [2009] 49 EHRR1R v Z EWCA [2009] Crim 20***Horncastle and Another [2009] UKSC14R v D(N); R v P(A); R v U(S) (2011) Times LR, 1 July Twist [2011] 3 All ER 1055, CA*** Al-Khawaja and Tahery v United Kingdom (2011) Times LR, 22 Dec (Grand Chamber)

Further reading

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Law Commission (Law Com No 245) “Evidence in Criminal Proceedings: Hearsay and Related Topics” (1997)

Birch “Hearsay: Same Old Story, Same Old Song?” [2004] Crim LR 556

Dennis “The Criminal Justice Act 2003: Part 2” [2004] Crim LR251

Jackson “Hearsay: the sacred cow that won’t be slaughtered?” (1998) 2 E & P 166

Munday “The Judicial Discretion to Admit Hearsay Evidence“ [2007] JP v171, 276

Ormerod [1998] Crim LR 301 “Redundant Res Gestae?”

Taylor (2005) 9 E & P 110 “Two English hearsay heresies”

Worthern [2008] Crim LR 431 “The hearsay provisions of the Criminal Justice Act 2003: so far, not so good?”

Spencer (2009) CLJ, 68(2) 258 “Hearsay reform: the train hits the buffers at Strasbourg”

Birch & Hirst (2010) C L J 72 “Interpreting the new concept of hearsay”

Spencer (2010) Arch Rev 6 “Squaring up to Strasbourg: Horncastle in the Supreme Court”

Requa (2010) E & P 208 “Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue?”

Ormerod [2011] Crim LR 793 Case Comment “Evidence: hearsay – Criminal Justice Act 2003 ss. 114-115”

The common law

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1 What is meant by hearsay evidence?

2 What are the justifications for the rule against hearsay evidence?

3 Not all out-of-court statements constitute hearsay evidence. How is thisillustrated by Subramaniam v Public Prosecutor; Lydon;

4 Explain the use of the hearsay rule in McLean. What about Osbourne?

5 Do you think that Sparks makes the case for a different approach to hearsay evidence when it is sought to be adduced by the defence?

6 Does the decision in Rice represent an evasion of the hearsay rule? .

7 What principle did the decision in Kearley establish?

.8 In what circumstances and under what conditions was a dying declaration admissible at common law by way of exception to the hearsay rule?

9 What is meant by the res gestae?

10 According to the decision in Andrews in what circumstances were spontaneous statements admissible by way of exception to the hearsay rule?

11 Statements which illustrate the contemporaneous state of mind of someone where this is material to an issue in the case could be admitted by way of the res gestae exception to the hearsay rule. In the light of this, consider Blastland. .

Statutory provisions pre- Criminal Justice Act 2003

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12 What was the purpose of ss 23 and 24 of the Criminal Justice Act 1988?

13 What is meant by first-hand hearsay? What is the difference between first-hand and second-hand hearsay?

14 In what circumstances could hearsay evidence be admitted under Section 23 of the Criminal Justice Act 1988? Consider the case of R v Sed.

15 In what circumstances would the courts allow documentary evidence where fear was alleged? Were the courts too lenient in their approach? 16 Explain in your own words, the circumstances in which a document was admissible under s24, Criminal Justice Act 1988.

17 Explain briefly the purpose of ss 25 and 26.

Criminal Justice Act 2003

18 What were the recommendations of the Law Commission regarding hearsay?

19 Has the nature of the rule changed?

20 How is hearsay now defined?

21 Consider the exceptions – statutory, common law & the inclusionary discretion

22 How significant are the unavailability provisions?

23 First-hand or multiple hearsay – does it matter? When is multiple hearsay admissible?

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24 Section 23 is abolished and replaced by s116. What differences are there between the two provisions?

25 In what circumstances may hearsay be admitted where it does not come within any of the exceptions set out in the Act?

26 The case of Horncastle has proved particularly controversial. Why?

27 Carefully consider the judgment of the Grand Chamber of the ECtHR In Al-Khawaja and Tahery, published on 22 December 2011.

SEMINAR 6

ENTRAPMENT

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1. Read R v Shannon [2001]

How was the defendant entrapped in Shannon ? What was the attitude of the court to the possible remedies available? Do you agree with this view? Is it justified?

2. Consider Williams v DPP in the light of Looseley Would it be decided differently? Should it to be?

3. Read an article on Texeira & form a view of the case

4. Read in full the 2007 article by Choo and Nash listed at the start of the lecture section of your handbook

What are the lessons for England & Wales?

5. Consider how (any) other common-law jurisdictions deal with entrapment & come prepared to discuss

SEMINAR 7

THE COMPETENCE, COMPELLABILITY, EXAMINATION & PROTECTION OF WITNESSES

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1. Should we dispense with the requirement that evidence be given on oath?

2. Is the position of a spouse as a witness unnecessarily complicated? Consider s18 Australian Evidence Act 1995

3. Identify what special measures are available for the protection of witnesses. Are they inadequate, sufficient or excessive? Why is R v Davis controversial?

4. Compare sections 41-43 Youth Justice and Criminal Evidence Act 1999 and section 2 Sexual Offences (Amendment) Act 1976: how do these provisions differ in relation to a victim’s sexual history? Why is this such a controversial area of evidence law?

5. Please read & reflect on the case of R v A (No 2) and its significance?

6 What has the Law Commission recommended in an attempt to resolve some of the apparently intractable problems associated with expert evidence?

SEMINAR 8

BAD CHARACTER OF THE DEFENDANT

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Q1: Jeremy, 35, is on trial for the attempted rape of Beth, the 15 year old daughter of the friends for whom he was babysitting. Kath is Beth’s elder sister.

The prosecution has advised the judge and the defence that they wish to adduce evidence about the following

(a) Jeremy’s relationship with Kath, now 18, which started on her 16th birthday when she was still at school

(b) Jeremy’s previous conviction in 1998 for exposing himself to a middle-aged woman to which he pleaded guilty and for which he was fined £200.

(c) Jeremy’s previous conviction for obtaining money by deception when he was a 19 year old undergraduate and to which he pleaded guilty at Lewes Magistrates Court.

(d) Jeremy’s other two previous convictions in 2006 and 2007, after contested trials at which Jeremy gave evidence in his own defence, for causing actual bodily harm and for shoplifting.

(e) A complaint by a neighbour that Jeremy late last year while babysitting at her house, had sent suggestive text messages via his mobile phone to her daughter, who was then a classmate of Kath’s, but in respect of which the police took no action.

The defence is unhappy about the prosecution application. As the trial judge, how would you deal with these matters?………………………………………………………………………………………..

Bad character of other personsQ2(i) What are the considerations in relation to the bad character of persons other than defendants?(ii) Must they be witnesses?………………………………………………………………………………………..

Q3How would you describe the overall effect to date of the CJA provisions relating to bad character?

NB: If we do not complete questions 2 & 3 there will be an opportunity at some stage during either seminar 9 or seminar 10.

SEMINAR 9

HEARSAY(1)

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1. Evaluate the CJA hearsay provisions & identify those which are proving controversial and why.

2. What is the particular significance of Article 6 in respect of hearsay evidence? Is this in conflict with the statutory exceptions?

3. Read & summarise an article on Horncastle at the Supreme Court stage and come prepared to discuss your interpretation.

4. What is the significance of the ECtHR Grand Chamber judgment in December 2011 in Al-Khawaja and Tahery?

5. Why not go the whole hog and abolish the hearsay rule?

6. What is your overall view of the so-called ‘safety valve’ inclusionary discretion created by the CJA, and of its exclusionary sister provision? Consider the inter-relationship between the compellability of a spouse and the use of s114(1)(d) CJA (see Ormerod, D Case Comment [2008] Crim L R 823

SEMINAR 10

HEARSAY (2)

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Louis has been found dead at his house in the Lake District. Simon has been charged with his murder. An expensive Rolex watch, with the inscription ‘SC reigns supreme’ on the back, has been found by police in the dead man’s garden. Louis’s cleaner – who has since returned to her native Ireland and has gone to live on an island off the west coast but without leaving a forwarding address – did tell the police a few days after the discovery of the body that she had heard her employer in conversation with another man on the morning of the murder. She said that she did not see either man but obviously recognised her employer’s voice. Although she could not hear all of the conversation she was able to recall that Louis said, “Don’t forget to send me that demo tape for the new show, Simon.”

When first interviewed Simon claimed that he was touring Scotland on the day of the murder. However, a rather obsessive fan of Louis, who spends much of her time in the Lake District, told a postman that she had seen Simon in the area about an hour before the time of the murder. But no statement was taken and she cannot now be found. Simon has since admitted that his claim to be in Scotland on the day of the murder was untrue but claims that he did not want his wife to know where he had been because he is having an affair with a young woman who has a cottage in the Lake District.

A third witness, Sharon, has refused to attend court to give evidence because her elderly mother is a resident in an old folks’ home owned and run by one of Simon’s bodyguards and she is very worried that her mother might be harmed by this man.

Discuss the evidential issues arising.

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