Evidence

Evidence
Beverley Brown
Amber Marks
This module guide was prepared for the University of London by:
u Beverley Brown, PhD
u Amber Marks, LLB, Barrister, Gray’s Inn, Lecturer in Criminal Law and Evidence,
Queen Mary, University of London.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide.
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Evidence page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
1 Introduction to the study of evidence law . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Studying the law of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 Basic concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Key concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Theoretical context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Procedural context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3 Burden and standard of proof . . . . . . . . . . . . . . . . . . . . . . 21

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Criminal trials before the Human Rights Act 1998 . . . . . . . . . . . . . . 23
3.2 The Human Rights Act 1998 and defence burdens in criminal trials . . . . . 29
3.3 Directions to the jury and effects of misdirection in criminal trials . . . . . . 34
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4 Confessions and improperly obtained evidence . . . . . . . . . . . . . 39

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.2 Section 78(1) of PACE 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5 The right to silence and adverse inferences under the Criminal Justice
and Public Order Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . 51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.1 Section 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.2 Sections 36 and 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.3 Section 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.4 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6 Hazardous witness testimony and judicial warnings to the jury . . . . . 61

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.1 Makanjuola warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 Directions about a defendant’s lies . . . . . . . . . . . . . . . . . . . . . . 64
6.3 Eyewitness identification testimony . . . . . . . . . . . . . . . . . . . . . 66
6.4 Pre-trial identification procedures . . . . . . . . . . . . . . . . . . . . . . 69
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
page ii University of London
7 Evidence of a complainant’s extraneous sexual behaviour in trials of

sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.1 Legislative background . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.2 Sections 41–43 of the Youth Justice and Criminal Evidence Act 1999 . . . . . 78
7.3 R v A (No 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
7.4 The application of YJCEA 1999 since R v A (No 2) . . . . . . . . . . . . . . . . 79
7.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.6 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8 Character evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8.1 Good and bad character in civil proceedings . . . . . . . . . . . . . . . . . 89
8.2 Evidence of a defendant’s good character in criminal trials . . . . . . . . . . 89
8.3 Evidence of bad character in criminal trials . . . . . . . . . . . . . . . . . 91
8.4 Bad character of non-defendants . . . . . . . . . . . . . . . . . . . . . . 101
8.5 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
9 The rule against hearsay . . . . . . . . . . . . . . . . . . . . . . . . 109

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
9.1 Basic overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
9.2 Hearsay in the Criminal Justice Act 2003 and the preserved common law
exception for res gestae . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
9.3 Supplementary safeguard provisions of note . . . . . . . . . . . . . . . . 121
9.4 The impact of Article 6(3)(d) of the European Convention
on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
9.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
10 Expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
10.1 The risks associated with expert evidence . . . . . . . . . . . . . . . . . 133
10.2 Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
10.3 The presentation and evaluation of expert evidence . . . . . . . . . . . . 135
10.4 Judicial directions to the jury . . . . . . . . . . . . . . . . . . . . . . . . 135
10.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Evidence page iii
Module descriptor
GENERAL INFORMATION
Module title
Evidence
Module code
LA3007
Module level
6
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk/
Credit
30
Courses on which this module is offered

LLB, EMFSS
Module prerequisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Evidence is offered as an optional module to students studying on the Standard Entry
and Graduate Entry LLB courses. It is also offered as an Individual Module. Credits from
an Individual Module will not count towards the requirements of the LLB.
Evidence governs what evidence may be presented and contested in the courtroom,
as well as the inferences that may properly be drawn from it and any guidance that
must given in relation to such inferences and the role of the lawyers, jury and judge in
an adversarial system. Highly relevant to actual day-to-day legal practice, this module
will appeal particularly to students intending to become courtroom lawyers.
MODULE AIM
The aim of this module is to equip students with some of the skills necessary for in-
depth legal analysis and good advocacy. The rationale and principles underpinning the
rules of evidence will be explored, taking account of their context, value and purpose.
LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding of
the main concepts and principles of Evidence law. In particular they should be able to:
1. Demonstrate a critical awareness of the relationship between the theoretical

context of the law of evidence (its policy aims and objectives) and the common
law and legislative provisions in the law of evidence;
2. Explain and distinguish between legal and evidential burdens of proof; the role
of policy in the allocation of burdens; the difficulties in determining whether a
page iv University of London
statute has impliedly placed a burden of proof on a defendant and the role of
Article 6 of the European Convention on Human Rights in this determination;
3. Construct an argument for or against the relevance of a particular piece of

evidence and be able to construct an argument for or against the admissibility of a
range of types of evidence;
4. Explain and critically evaluate judicial warnings to the jury.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to demonstrate the ability to:
5. Analyse and interpret complex legal concepts and their application to factual
scenarios;
6. Articulate well-argued potential solutions to a range of complex evidential topics

(such as the challenges posed by expert scientific evidence);
7. Reflect on learning, identifying areas for improvement;
8. Evaluate legal issues (such as the right to silence or the admissibility of sexual
history evidence or bad character evidence) in a social, economic and political
context taking account of their policy and doctrinal importance.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.
MODULE SYLLABUS
a. Basic concepts of relevance, admissibility and weight and theoretical and procedural
context. Nature and classification of various types of evidence. Objectives of
evidence law and determination of probative value.
b. Burden of proof. Legal and evidential burdens. Allocation of the legal burden in
criminal and civil trials. The standard of proof in civil proceedings. The standard of
proof in criminal proceedings. Critical evaluation.
c. Confessions and improperly obtained evidence. Using and excluding confessions.

Using and excluding improperly obtained evidence. Entrapment. Critical
evaluation.
d. The right to silence and adverse inferences under the Criminal Justice and Public Order
Act 1994. Critical evaluation.
e. Hazardous witness testimony and judicial warnings. Makanjuola warnings. Directions

about a defendant’s lies. Eyewitness identification. Dangers and pre-trial
identification procedures. Directions to the jury and withdrawal of the case/
evidence. Critical evaluation.
f. Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences.

Legislative background. Youth Justice and Criminal Evidence Act 1999. Sections
41–43 and its interpretation in the case law. Critical evaluation.
g. Character evidence. Good and bad character evidence and the admissibility
gateways for bad character evidence concerning defendants and non-defendants.
Critical evaluation.
h. The rule against hearsay. The rule (its definition, scope and rationale). The definition
of hearsay. Exceptions to the rule. The impact of Article 6(3)(d) of the European
Convention on Human Rights.
i. Expert evidence. Admissibility. Evaluation of the law (including judicial directions)

and practice. Dangers and reforms to ameliorate associated risks. Critical
evaluation.
Evidence page v
LEARNING AND TEACHING
Module guide
Module guides are the students’ primary learning resource. The module guide covers
the entire syllabus and provides the student with the grounding to complete the
module successfully. It sets out the learning outcomes that must be achieved as well
as providing advice on how to study the module. The module guide is supplemented
each year with the pre-exam update, made available on the VLE.
The Laws virtual learning environment (VLE)

The Laws VLE provides one centralised location where the following resources are
provided:
u a module page with news and updates;
u a complete version of the module guides;
u pre-exam updates;
u past examination papers and reports;
u discussion forums where students can debate and interact with other students;
u quizzes – multiple‑choice questions with feedback are available for some modules
allowing students to test their knowledge and understanding of the key topics.
The Online Library

The Online Library provides access to:
u the professional legal databases LexisLibrary and Westlaw;
u cases and up-to-date statutes;
u key academic law journals;
u law reports;
u links to important websites.
Core texts
Students should refer to the following core texts and specific reading references are
provided for this text in each chapter of the module guide:
¢ Choo, A. Evidence. (Oxford: Oxford University Press, 2021) sixth edition
[ISBN 9780198864172].
¢ Durston, G. Evidence: text and materials. (Oxford: Oxford University Press, 2011)
second edition [ISBN 9780199583607].
ASSESSMENT
Learning is supported through tasks in the module guide, which include self-
assessment activities with feedback. There are additional online activities in the form
of multiple‑choice questions.
Summative assessment is through a three-hour and 15 minute unseen examination.

Students are required to answer four questions out of eight from a choice of essay and
problem questions.
Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
page vi University of London
Permitted materials
Students are permitted to bring into the examination room the following specified
document:
¢ Core statutes on evidence 2021–22 (Palgrave Macmillan).

1 Introduction to the study of evidence law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Studying the law of evidence . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . 3
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

page 2 University of London
Introduction
This module guide is designed to help you to study evidence in English law. Each
chapter will highlight the most important aspects of the topic and give guidance as to
the core texts as well as the Essential and Further readings. Within each chapter you
will find exercises (activities) designed to test your understanding of the topic and
self-assessment questions to monitor your understanding and progress. There are
also sample examination questions with advice on possible approaches (not model
answers) to the questions.
The key to the successful study of evidence is understanding, not rote-learning.

Evidence law can be found in a mixture of common law and statutory sources,
including codes of practice made under statutory powers. You must be able to adopt a
critical approach to these sources, and be able to apply them to factual situations.
Learning outcomes
By the end of this chapter (which does not contain any readings) you should be able
to:
u approach the study of evidence in a systematic way
u understand what the various elements of this module guide are designed to do
u begin your study of evidence with confidence.
Evidence 1 Introduction to the study of evidence law page 3
1.1 Studying the law of evidence

Welcome to the law of evidence and congratulations on a wise choice of module. The
law of evidence is of huge importance to legal practice; it is taught on all vocational
courses. If you do go on to study law at a vocational level you will find it very helpful
to have already studied the law in this area in greater depth than the time constraints
of vocational courses permit, and you will be better equipped to become an effective
advocate as a result.
The law of evidence regulates the admission of evidence, the use that may be made
of the evidence during the trial and the judicial directions that should be given to the
jury. It also establishes which party should prove the facts in issue and the standard of
proof that must be met in proving them.
The law of evidence draws on a wide range of disciplines to enhance the legal system’s
ability to achieve accurate decision-making. This makes it both interesting and
challenging to study. Many of its rules are informed by discoveries in science, such
as the peculiarities of human perception and memory (see Chapter 6). The law of
evidence has sought to incorporate lessons learned in the fields of psychology, logic
and philosophy, and its developments are informed by these, as well as by public
policy considerations and legal principle.
The bulk of the law of evidence that you will study relates to the conduct of criminal trials
in the Crown Court. This is because the law is most highly developed in this context. In
civil trials, the vast majority of which are tried by a judge alone, the law of evidence has
been considerably relaxed by the removal of many of the restrictions on admissibility
that apply in criminal jury trials. In magistrates’ courts, generally because of the absence
of a jury, the rules of evidence are different, to some extent, in practice. In many tribunals
and in arbitrations the rules of evidence have little or no application at all.
Evidence law is a mixture of principles, rules, guidelines and discretions.
1.2 A suggested approach to study

See also the Programme handbook and Studying law.
You should start with this module guide. Start at the beginning and work through the
chapters sequentially, studying the core texts and Essential reading and doing the
activities as directed. It may be tempting to start with, say, hearsay, or identification
evidence, but this is not a good idea. The guide builds on the basic foundations
without which particular topics later in the course cannot be understood. The first
chapter deals with complex issues and you will find much of the material difficult to
understand at first. You will find the rest of the module much easier if you take the
time to get to grips with the preliminary material.
1.2.1 Core texts and Essential reading

This guide will provide you with references from two primary textbooks.
Core texts
¢ Choo, A. Evidence. (Oxford: Oxford University Press, 2021) sixth edition
[ISBN 9780198864172].
¢ Durston, G. Evidence: text and materials. (Oxford: Oxford University Press, 2011)
second edition [ISBN 9780199583607].
Extracts from the following additional textbooks on evidence are available on the VLE.
If you particularly like the style of any of these books, you might consider purchasing a
copy.
Additional textbooks
¢ Allen, C., C. Taylor and J. Nairns Practical guide to evidence. (London: Routledge,
2015) fifth edition [ISBN 9781138781719].
¢ Emson, R. Evidence. (Hampshire: Palgrave Macmillan, 2010) fifth edition

[ISBN 9780230272682].
¢ Dennis, I.H. The law of evidence. (London: Sweet & Maxwell, 2017) sixth edition
[ISBN 9780414056138] (available in VLeBooks via the Online Library).
¢ Munday, R. Evidence. (Oxford: Oxford University Press, 2019) 10th edition

[ISBN 9780198832461].
¢ Roberts, P. and A. Zuckerman Criminal evidence. (Oxford: Oxford University Press,

2010) second edition [ISBN 9780199231645].
Statute book
You should also obtain a statute book. Under the Regulations you are allowed to take
one authorised statute book into the examination room.
Information about the statute books and other materials that you are permitted to use
in the examination is printed in the current Regulations, which you should refer to.
Please note that you are allowed to underline or highlight text in these documents –
but you are not allowed to write notes etc. on them.
Statute books are regularly updated: try to obtain the latest copy.
Legal journals
In additional to the essential texts, you should consult a range of legal journals to keep
yourself up to date with academic writing on the subject.
Read the law reports in:
u Criminal Law Review
u Criminal Appeal Reports.
The Criminal Law Review has helpful commentaries on new cases. Useful short articles
on evidence can sometimes be found in New Law Journal. Case notes and longer
articles sometimes appear in: Law Quarterly Review, Cambridge Law Journal and Modern
Law Review. The International Journal of Evidence and Proof is, as its title indicates, a
journal devoted exclusively to evidence.
Please note that as long as you read the core texts and Essential reading you are then
free to read around the subject area in any text, paper or online resource. You will
need to support your learning by reading as widely as possible and by thinking about
how these principles apply in the real world. To help you read extensively, you have the
virtual learning environment (VLE), Online Library and other legal resources.
1.2.2 How to proceed

u For general advice on studying law courses and managing your study time, see
the Programme handbook.
This guide takes you through the entire subject of evidence in a logical and systematic
way, with each chapter covering a particular topic or group of topics. It is centred on
the core texts. References in the text to ‘Choo’ or ‘Durston’ are references to these
textbooks.
Much of your study time should be taken up reading the textbooks, though you will
also need to study numerous case reports and statutes.
Working through a chapter of the module guide

1. Begin each chapter of the module guide by reading the Introduction.
2. Next you will see a heading ‘Core texts’. This tells you what parts of the textbooks
are required reading for the topic you are studying. This is followed by the Essential
readings. ‘Essential’ means that you must read this material. This is where you
will find the information that you will need to pass your examination. Do not skip
these readings. You should read the readings at the point that they are referred
to in the subsequent text.
You will be provided with options for Further reading.
3. When you have finished the readings, look at the list of ‘Learning outcomes’ for the
chapter. Keep these in mind as you work through the rest of the chapter.
4. At the end of most sections you will find a Reminder of learning outcomes that are
relevant to them. Test yourself against these.
u If you feel that you have achieved the outcomes, then it is safe to proceed. If
you do not, you should go back over the work you have done until you do.
5. At the end of each chapter is a ‘Quick quiz’ consisting of multiple‑choice questions.

Attempt to answer these before you look at the answers on the VLE.
Activities and self-assessment

The activities are exercises that are designed to help you learn and understand
important issues. They do this by getting you to think about a question and devise a
response. Activities will not have simple ‘yes’ or ‘no’ answers: often you will need to
write down a few sentences, so activities also give you useful practice in using legal
English. In most cases, feedback is provided at the end of the guide, but it is essential
to do the activities before you look at the feedback.
Do each activity to the best of your ability, then check the feedback. How well did you
do? If your answer to the activity was incorrect or incomplete, think carefully about
what went wrong. Do you need to re-read part of the textbook, or work through the
module guide chapter again?
Sample examination questions

Most chapters contain one or two sample examination questions. These are examples
of the kinds of questions that have been asked on the particular topic in previous years.
You should answer the examination questions fully. This will give you practice in
presenting your knowledge and understanding of the topic in a thorough and
integrated way. Think about each question. Ask yourself:
u What legal issues does this question relate to?
u What do I need to answer it, in terms of theoretical and procedural approaches,

legal knowledge, case law, statutes or codes of practice?
u Is this a topic on which there are differing academic views? Do I need a deeper
understanding of underlying rationales and conflicts between them?
u What is an appropriate, balanced solution to the question?
Next read the Advice on answering the questions that follows. This will help you put
together an effective answer. Spend 15–30 minutes writing your answer.
By writing down your answers you will develop the skill of expressing yourself clearly
and logically on paper. It will also help you to approach the examination at the end of
the year. You need to put in as much practice as possible in writing fluently and lucidly
throughout the academic year.
When you see a problem question, it is important to remember that your answer
should not always be confined to problems of admissibility. One of the main topics
in the law of evidence concerns the directions the trial judge should give to the jury
to help them assess the weight they should attach to items of evidence that are
particularly difficult to evaluate.
Self-assessment questions (SAQs) are a little different. These are factual questions
designed to test your memory of the chapter you have just worked through. You may
find it useful to ask a friend, fellow student or family member to test you on these
questions. No feedback is given to SAQs because you can always find the answer
somewhere in the text of the module guide chapter.
Cases
Numerous cases are mentioned in the text. These cases are not chosen at random:
they are the important cases that have established, modified or clarified the law.
Further reading
When you have completed your study of a section or chapter of the guide and
textbook, check whether any Further reading is recommended.
1.2.3 Ten golden rules for studying evidence

1. Learn each topic as you study it and revise frequently. Evidence is not a subject
that you can ‘cram in’ at the last minute.
2. Read each chapter in your textbook at least twice. What is unclear at first reading
will often become clearer on a second or subsequent reading.
3. Read as many of the important cases as you can. Textbooks have to summarise cases
succinctly, and summarising can be an obstacle to understanding. You are more likely
to understand a decision in a particular case if you have read the case itself in full.
4. Read as much of the recommended Further reading as you can. This will be
important for essay questions in the examination.
5. Take full notes of what is said in any lectures and tutorials that you attend as
well as of everything that you read – chapters in textbooks, articles and cases. Keep
these notes in a loose-leaf file so that you can add new material to each section as
the need arises.
6. Read with a book of statutes at hand for reference. You are allowed to bring a
statute book into the examination hall, but you will not be able to use it effectively
unless you are already familiar with its contents. Statutes are not easy to read, and
so you will need to take your time with this, reading each section that your book or
article refers to several times to ensure that you have grasped all its details.
7. Condense your own full notes into a skeleton set of notes. Your skeleton notes
will be infinitely more valuable than someone else’s, and are essential to ensure
that you learn and revise properly. You will need an ordinary, bound notebook, with
separate sections for each topic that you learn. Ask at a law stationer’s for some
‘counsel’s notebooks’ if you can; they are more substantial than ordinary school
exercise books and come in ruled and unruled varieties.
When you have finished studying one topic in evidence, go through your full notes
and condense them into a pattern of rules set out under headings, sub-headings
and any further divisions that are convenient. Do this at first on rough paper so that
you can find the best way of setting things out and of summarising your full notes.
Then copy your final version onto the right-hand page of your notebook, making
sure that you add the names of the cases and statutory references that support
each rule. On the left-hand page summarise each case referred to on the right-
hand page in not more than three or four lines. When you have done that, put your
skeleton notes aside, take some more rough paper, and see if you can write out
from memory what you have just written. Check it against the skeleton and, if need
be, repeat the exercise until you have the whole section clearly in your memory.
8. Practise answering the Sample examination questions. Begin by looking up as

much information as you need to answer the question. Make any notes you think
necessary, including a framework for an answer. Then put your notes aside and try
to write your answer in 35–40 minutes. Later, choose another question and try to
answer it in the same period of time, but without any preliminary reading. Make a
plan for your answer as part of the ‘unseen’ exercise within the 35–40 minute period.
9. Keep up to date. To some extent, every textbook is out of date as soon as it appears
in the bookshops because the law is constantly changing. The Pre-exam update will
highlight relevant changes in the law since the publication of this guide and you are
advised to bear in mind the date of publication of your Core texts to ensure you take
note of instances where the law has been updated or reformed since their publication.
10. Try to see the law in action. What you read in books often makes more sense if you
go to see criminal trials in the Crown Court. Pay particular attention to any legal
arguments that take place in the absence of the jury; very often they will be about
points of evidence.
1.2.4 Study time

You should set aside a specific amount of time each week to study this subject,
increasing the amount in the six weeks before the examination. Remember, though,
that individuals vary greatly in their needs; the time to stop studying is when you
know the topic thoroughly – and not until then. It is very important to plan your time
carefully. Do not forget to leave time every week and month for revision in addition to
the period before the examination. Revision must be a continuous process.
1.3 The examination

Important: the information and advice given in the following section are based on the
examination structure used at the time this guide was written. However, the University
can alter the format, style or requirements of an examination paper without notice.
Because of this we strongly advise you to check the rubric/instructions on the paper
you actually sit.
The examination contains a choice of essay and problem questions. Both types of
question require you to show both knowledge of the law and a critical approach to it.
It follows that reading a single textbook, and some of the cases it refers to, is not
enough to satisfy the examiners. You must be aware of major proposals for reform
of the law, as well as arguments that have been advanced by writers who are critical
of the present state of the law. This means that you must read as widely as you can
from recommended articles. Showing knowledge of different scholarly views and an
appreciation of their significance in respect of the issues is a key part of developing a
critical perspective. To take this further in forming a capacity for independent thought,
during your studies you must:
u think for yourself about the persuasiveness of the arguments put forward in what
you read
u ‘read around’ the topic
u discuss problems with your tutor or lecturer, if you are studying at an institution or
receiving tuition
u discuss problems with fellow students.
Problem questions require you to apply your knowledge of the law to specified sets of
facts. To cope with these successfully, you must be able to see what issues arise on the
facts and advise on them accurately and succinctly, referring always to the sources of
law upon which you rely for your conclusions. The law may well be uncertain. If so, you
must explain why, then choose what you believe to be the decision most likely to be
made by the court, giving reasons for your choice.
Good luck!
Notes
2 Basic concepts
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Key concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Theoretical context . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Procedural context . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Introduction
The aim of this chapter is to familiarise you with:
1. Key concepts: This chapter will introduce you to the concepts of relevance, weight
and admissibility.
2. Terminology: You need to understand the most important legal terms early on in
order to get to grips with the subject. This chapter introduces you to these terms.
3. The theoretical context: Besides ‘learning the language’ of evidence, you need to
begin to develop a critical attitude towards the law so that you can write good
answers to essay questions in the examination. It is impossible to adopt a critical
attitude if you have no understanding about what the principles and objectives
of the law should be, and so this chapter introduces you to that topic too. This is
an important section and you will need to return to it repeatedly throughout the
module in order to evaluate the new areas of law you are learning about.
Familiarity with the principles, aims and objectives of the law of evidence is
particularly important on account of the trend in the development of the law
of evidence away from rules and prescription, and towards judicial discretion.
Discretionary powers should be exercised in accordance with a framework of
principles and you will need to familiarise yourself with them.
4. The procedural context: It can be difficult to understand the law of evidence

without some understanding of the context in which it is being applied. This
chapter seeks to familiarise you with the trial and appeal processes in the
adversarial system of England and Wales.
Core texts
u Choo, Chapter 1 ‘Introduction’ and Chapter 3 ‘The course of evidence’.
u Durston, Chapter 1 ‘Introduction to the law of evidence’ and Chapter 2 ‘Judicial
discretion’.
Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
u explain what is meant by ‘relevance’, ‘weight’ and ‘admissibility’
u present arguments on the relevance and admissibility of a given item of evidence
u explain what is meant by the following major technical terms used in evidence
law: direct evidence, circumstantial evidence, collateral facts, documentary
evidence, testimony, facts in issue, real evidence and hearsay
u explain the functions of judge and jury in a Crown Court trial
u explain the functions of cross-examination
u describe the impact of the Human Rights Act 1998 and the European Convention
on Human Rights on evidence law
u discuss the current objectives of evidence law and comment critically on them
u explain when the Court of Appeal has the power to quash a conviction.
Evidence 2 Basic concepts page 11
2.1 Key concepts

The basic framework for the admission of evidence is that all relevant evidence is
admissible except by virtue of an exclusionary rule or an exclusionary discretion.
Core texts
¢ Choo, Chapter 1 ‘Introduction’, Section 2 ‘Relevance, admissibility, and weight’.
¢ Durston, Chapter 1 ‘Introduction to the law of evidence’, Section 7 ‘Three

key concepts: relevance, cogency, admissibility’ and Section 8 ‘Confusion in
terminology’; Chapter 2 ‘Judicial discretion’.
Essential reading
¢ Allen et al., Chapter 1 ‘Basic concepts’ (available on the VLE).
¢ Dennis, Chapter 3 ‘Relevance and admissibility’, Section B ‘Relevance’; and

Chapter 4 ‘Facts and fact finding’, Section E ‘Theories of fact finding’ (available on
the VLE).
¢ Appendix A of ‘The admissibility of expert evidence in criminal proceedings

in England and Wales: a new approach to the determination of evidentiary
reliability’, Law Commission Consultation Paper 190 (2009) (at www.lawcom.
gov.uk/app/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf).
¢ Cases: Wilson [2008] EWCA Crim 1754, commentary in (2009) Crim LR 193; Barry
George [2007] EWCA Crim 2722; Kearley [1992] 2 AC 228 (ignore arguments about
whether or not it is hearsay and focus on the relevance).
2.1.1 Relevance
The concept of relevance is not a straightforward one and we will explore it in some
depth. It is crucial to have a working definition of relevance. The best is that given by
Lord Simon in DPP v Kilbourne [1973] AC 729, 756: ‘Evidence is relevant if it is logically
probative or disprobative of some matter which requires proof.’ (Evidence is
‘probative’ of a proposition if it tends to show that proposition to be true; evidence is
‘disprobative’ if it tends to show that proposition to be false.) The idea of relevance is
fundamental to evidence law because:
u all relevant evidence is prima facie admissible, and no irrelevant evidence is

admissible
u the relevance of an item of evidence can determine what rules or principles of law
govern its admissibility. For example, the rule against hearsay excludes an out-of-
court statement only if it is adduced in order to establish the truth of what was
stated. If it is relevant for a different reason (e.g. to prove the maker of the out of
court statement speaks English), the rule does not apply. To evaluate the relevance
of a piece of evidence you need to identify what it could be probative of.
You need to be able to construct an argument for or against the relevance of a given
item of evidence. In constructing such arguments you need to realise how important it
is to use generalisations about what the world is like.
2.1.2 Weight
The weight or ‘probative value’ of an item of evidence will generally, though not
always, be determined in a criminal trial in the Crown Court by the jury. However,
sometimes judges do decide questions of weight; for example, on a submission of
‘no case to answer’ (see below), and in exercising the judicial discretion to exclude
prosecution evidence where its potential for causing unfair prejudice to a defendant
is greater than its probative value. Note also the problem of whether weight is an
element to be taken into account when determining relevance.
2.1.3 Admissibility and exclusion of evidence

Admissibility is clearly a matter of law – unlike relevance and weight, which are matters
of logic and common sense. But note that questions of admissibility may turn on the
relevance that a particular item of evidence has in the circumstances – as with the rule
against hearsay. It follows that before you can tackle the legal question of admissibility,
you will often have to clarify the logical or common sense question of relevance. Note
the position in civil trials under the Civil Procedure Rules (CPR), where the judge has a
wide discretion under CPR r.32.1(2) to exclude evidence that is relevant and admissible
so as to secure the ‘overriding objective’, as defined in CPR r.2.1(2). In criminal cases
the court has the discretion to exclude prosecution evidence on the ground that
its probative value is outweighed by its prejudicial effect. In order to exercise these
discretions it is inevitable that the judge will have to consider questions of weight.
In Wilson [2008] EWCA Crim 1754 (case comment by Roberts, A. (2009) Crim LR
193) the Court of Appeal considered the admissibility of evidence, from a witness
responsible for monitoring crime, that no similar offences had been committed since
the defendant’s arrest. The defence argued that the evidence was ‘too nebulous and
prejudicial’ to be admitted. The Court of Appeal upheld the judge’s ruling that it did
have sufficient probative value to be admitted.
In HSBC Asia Holdings BV v Gillespie [2011] ICR 192 EAT, Underhill J (President) held that
employment tribunals have the power to exclude evidence which is ‘“logically” or
“theoretically” relevant but nevertheless too marginal, or otherwise unlikely to assist
the court, for its admission to be justified’ (at [13]).
Further reading
¢ Choo, A. ‘The notion of relevance and defence evidence’ (1993) CLR 114.
¢ Cases: Bracewell (1978) 68 Cr App R 44; Hollingham and Head [1858] 27 LJCP 241;
Blastland (1985) 81 Cr App R 266.
Activity 2.1
Read Dennis, Chapter 4, Section E ‘Theories of fact finding’, p.128 and the top of p.129
(available on the VLE). Without reading the remainder of p.129, try to identify the
assumptions and generalisations relied upon to make the inferential steps in A and B.
Self-assessment questions
1. What was the definition of relevance given by Lord Simon in DPP v Kilbourne?
2. Define:
a. relevance
b. weight
c. admissibility.
3. How well is relevance defined in English law?
4. How can the admission of irrelevant or minimally relevant evidence thwart the
aims of evidence law?
5. What is the difference between an exclusionary rule and an exclusionary

discretion?
2.2 Terminology
Core texts
u Choo, Chapter 1 ‘Introduction’, Sections 1 ‘Facts in issue and collateral facts’ to
5 ‘The allocation of responsibility’.
u Durston, Chapter 1 ‘Introduction to the law of evidence’, Sections 13 ‘Evidential
categories/terminology’ and 14 ‘The “best evidence” rule’.
You should thoroughly acquaint yourself with definitions of the following terms:
u direct evidence
u circumstantial evidence
u collateral facts
u documentary evidence
u testimony
u facts in issue
u real evidence
u hearsay.
You will not be able to understand evidence law without a confident understanding of
these terms. In particular, you should be prepared to provide examples of each.
Self-assessment question
u Define and give an example of each of the terms listed above.
Reminder of learning outcomes

By this stage you should be able to explain what is meant by the following major
technical terms used in evidence law:
u direct evidence, circumstantial evidence; collateral facts, documentary evidence,
testimony, facts in issue, real evidence and hearsay;
u present arguments on the relevance and admissibility of a given item of evidence.
2.3 Theoretical context

This topic will be helpful to you when you get to the critical evaluation sections in
forthcoming chapters and you are encouraged to refer back to it regularly. Theories
about the current objectives of the law of evidence can depend on explicitly rights-
based arguments, on explicitly consequentialist arguments, or on arguments relying
on the legitimacy of the verdict.
Core texts
¢ Choo, Chapter 1 ‘Introduction’, pp.1–2 and Sections 7 ‘Free(r) proof’ to 14
‘Organization of the book’.
¢ Durston, Chapter 1 ‘Introduction to the law of evidence’, Sections 9 ‘The history

of exclusionary rules and their reform’, 10 ‘The rationale behind evidential rules’
and 11 ‘The impact of ECHR/HRA 1998’.
Essential reading
¢ Roberts and Zuckerman, extract from Chapter 1 ‘Principles of criminal evidence’,
Section 1.3 ‘Five foundational principles of criminal evidence’ (available on the
VLE).
¢ Dennis, extract from Chapter 2 ‘The aims of the law of evidence’ (available on the
VLE).
Further reading
¢ Damaška, M.R. Evidence law adrift. (New Haven: Yale University Press, 1997)
[ISBN 9780300069372].
Accurate fact-finding (what Jeremy Bentham called the ‘rectitude of decision-making’)

is a core aim of any trial, criminal or civil. Some writers have argued that the whole of
the law of evidence may be derived from this one central value – or that it should be
the sole value. However, it is widely agreed that many other values are in play, such
as fairness and upholding the moral integrity of the criminal justice system. Often
it is debatable whether a particular objective is about ensuring the reliability of the
evidence (accurate fact-finding) or about the protection of broader principles. For
example, is evidence that has been unlawfully obtained by the policy excluded on
grounds of principle or on account of the risk that the evidence may be unreliable?
Appreciating that there are such different – and sometimes conflicting – objectives
informing the law of evidence lays the foundation for considering the admissibility of
evidence. Why are certain types of evidence not permitted? What are the underlying
principles and rationales for exclusionary rules? Is it purely because such evidence is
likely to be unreliable – that is, is truth the overriding value? Not infrequently. You will
find that case law reflects such competing values, making it difficult to identify a single
underlying pattern of reasoning. Being able to identify such underlying conflicts is the
mark of a critical reflective perspective and will serve you well in the examination.
You need to distinguish three basic lines of argument:
u rights-based arguments
u consequentialist arguments
u arguments based on the moral legitimacy of the verdict.
Activity 2.2
Suppose that, in the case of Adolphus Griggs, DC Goodall had entered Griggs’s room
unlawfully. He found Griggs there and said: ‘You’ve got a coat and a knife. Give
them to me.’ At first Griggs denied having any such articles. Thereupon, DC Goodall
broke Griggs’s arm and said: ‘I’ll break the other one if you don’t give them to me.’
Fearing a second assault, Griggs handed over a blood-stained coat and knife. The
prosecution wishes to produce these as evidence against Griggs.
a. Write down a consequentialist argument in favour of admissibility.
b. Write down a consequentialist argument against admissibility.
c. Write down a rights-based argument against admissibility.
d. Write down an argument against admissibility based on the legitimacy of the

verdict.
2.3.1 The European Convention on Human Rights and the Human Rights
Act 1998
Core texts
¢ Choo, Chapter 1 ‘Introduction’, Section 13 ‘The implications of the Human Rights
Act 1998’.
¢ Durston, Chapter 1 ‘Introduction to the law of evidence’, Section 11 ‘The impact

of ECHR/HRA 1998’.
You should be able to explain in outline the effect of the European Convention on
Human Rights (ECHR) in relation to the law of evidence, noting especially Article
6 (right to a fair trial) and Article 8 (right to privacy). A fundamental point is that
the European Court of Human Rights (ECtHR) adopts a flexible approach to the
interpretation of the Convention, despite the apparently absolute character of some
of the articles.
You need to be especially aware of the impact of the Human Rights Act 1998 (HRA
1998) (which came into force in October 2000). You should already be familiar with the
provisions of HRA 1998 but, by way of reminder, under HRA 1998, the court’s (judges’)
interpretive task can be broken down into three main stages:
1. Is the legislation, as conventionally interpreted in terms of its ordinary/

natural meaning, compatible with the ECHR (‘taking into account’ Strasbourg
jurisprudence as per s.2)?
If yes, that is the end of the question. If not:
2. The court’s interpretive duty under s.3 is engaged, to see if it is possible to reach a
Convention-compliant interpretation of the statute. You should already be familiar
with the techniques of ‘reading in’, ‘reading out’ and ‘reading down’ in order to
achieve compatibility. If a Convention-compliant reading cannot be achieved:
3. The last recourse is s.4, a declaration of incompatibility.
You may need to return to this interpretive schema in later chapters (for example, in
Chapters 3 and 6).
1. Why does English law assume that the worst possible outcome of the criminal
justice process is the conviction of the innocent?
2. Why is it a challenge to achieve ‘equality of arms’ in criminal proceedings? How

does the criminal law of evidence seek to achieve ‘equality of arms’?
3. What role can the law of evidence play in demonstrating the integrity of the
criminal process? How might a political regime forfeit the moral authority to call
suspected offenders to account and punish the guilty?
4. Why does public confidence in the administration also hinge on its ability to
convict the guilty?
5. According to Roberts and Zuckerman, what are the five foundational principles
of criminal evidence? Explain them and provide illustrations of the law’s
attempts to satisfy these principles.
2.4 Procedural context

The bulk of the law of evidence that you will study relates to the conduct of criminal
trials in the Crown Court. This is because the law is most highly developed in this
context. The vast majority of civil trials are tried by a judge alone and the law of
evidence has been considerably relaxed by the removal of many of the restrictions on
admissibility that apply in criminal jury trials. In magistrates’ courts, generally because
of the absence of a jury, in practice the rules of evidence are different to some extent.
You will not be asked questions in the examination that are specifically directed to
trials in magistrates’ courts.
2.4.1 The course of testimony
Core text
u Choo, Chapter 3 ‘The course of evidence’
In civil trials the claimant will present their case first, followed by the defence. In
criminal trials the prosecution will present their case first, followed by the defence.
Each party’s evidence is usually given in three stages. During examination-in-chief a
witness for one party is called and examined by that party’s counsel. The witness will
then be cross-examined by counsel for the opposing party. In a criminal trial where
there is more than one defendant, a defendant who gives evidence can be cross-
examined by counsel for co-defendants as well as by counsel for the prosecution.
Lastly, counsel who have examined the witness in chief examination can re-examine
that witness in order to clear up any misunderstandings or ambiguities that may have
arisen as a result of cross-examination. This is a very simple picture of the course of
testimony and there can be variations: for example, in civil trials a witness’s pre-trial
written statement can stand as evidence-in-chief.
u Examination-in-chief
This is the first stage of the examination of a witness at trial, and is conducted on
behalf of the party who has called that witness. In civil trials a witness’s pre-trial
written statement can stand as evidence-in-chief: see CPR r.32.5(2).
Witnesses are normally favourable to the cause of the parties who call them,
and so are likely to agree readily to any suggestion made to them by the parties’
advocates. Because of this, the rule was developed that questions suggesting
the answer that is desired (‘leading questions’) cannot be asked during
examination-in-chief.
u Cross-examination
The objectives of cross-examination are to complete or challenge the story told

by the witness during examination-in-chief or put an alternative version of events
to the witness. It follows that the scope of cross-examination is not confined to
those matters covered by evidence-in-chief, but extends to all relevant matters.
Leading questions are permitted in cross-examination, as are questions designed
to discredit the character of the witness being cross-examined or otherwise cast
doubt on their credibility or reliability.
There are some rules that restrict the scope of cross-examination. We will look
at restrictions on cross-examination of a complainant’s sexual history in trials
of sexual offences and at restrictions on cross-examination of a witness’s bad
character in later chapters. The only restriction of which you should be aware
at this preliminary stage is the collateral-finality rule. This provides that, where
a witness is cross-examined on a matter relevant solely to their credibility, the
witness’s answers have to be taken as final, and evidence may not be called by the
cross-examining party to rebut the witness’s answers. The reason for this is that
the trial should remain focused on the principal issues at stake and should not
be side-tracked into the pursuit of questions entirely collateral to the litigation
(sometimes referred to as ‘satellite litigation’). The reason behind this is that the
jury may become confused or overwhelmed by the pursuit of such side issues.
There are several exceptions to this rule, but the only one you need be aware of at
this stage is s.4 of the Criminal Procedure Act 1865, which applies where a witness
denies making a previous inconsistent statement.
u Re-examination
The object of re-examination is to clarify matters that were referred to in cross-

examination. It is important to remember that re-examination is confined to those
matters only, and may not be used to raise for the first time matters that should
have been dealt with during examination-in-chief.
2.4.2 The role of the judge
Essential reading
¢ Roberts and Zuckerman, extract from Chapter 2 ‘The procedural framework of
adversarial jury trial’ (available on the VLE).
2.4.3 Trial rulings governing the admissibility of evidence
Essential reading
adversarial jury trial’, Section (a) ‘Trial rulings governing the admissibility of
evidence’ (available on the VLE).
2.4.4 Submission of no case to answer
Core text
¢ Choo, Chapter 2 ‘Burden and standard of proof’, Section 2.1 ‘Burden of proof’.
Essential reading
¢ Roberts and Zuckerman, extract from Chapter 2 ‘The procedural framework
of adversarial jury trial’, Section 2.5(c) ‘Submissions of “no case to answer”’
(available on the VLE).
¢ Cases: AB v CPS [2017] EWHC 2963; Sardar [2016] EWCA Crim 1616; Galbraith [1981]1
WLR 1039.
Understanding submissions of no case to answer will be particularly helpful to you

in grasping the procedure judges should follow in relation to some of the types of
evidence we will look at in subsequent chapters, for example, eyewitness testimony
and hearsay.
You should familiarise yourself with the different elements of the Galbraith test.
The application of the Galbraith test to cases based on circumstantial evidence was
considered in Sardar [2016] EWCA Crim 1616, where Sir Brian Leveson P cited (inter alia)
this passage from King CJ’s judgment in Questions of Law Reserved on Acquittal (No 2 of
1993) (1993) 61 SASR 1 as one that correctly reflects English law:
If there is direct evidence which is capable of proving the charge, there is a case to answer
no matter how weak or tenuous [the judge] might consider such evidence to be. If the
case depends upon circumstantial evidence, and that evidence, if accepted, is capable
of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and
thus is capable of causing a reasonable mind to exclude any competing hypotheses as
unreasonable, there is a case to answer. There is no case to answer only if the evidence
is not capable in law of supporting a conviction. In a circumstantial case, that implies
that even if all the evidence for the prosecution was accepted and all inferences most
favourable to the prosecution which are reasonably open were drawn, a reasonable mind
could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way,
could not exclude all hypotheses consistent with innocence, as not reasonably open on
the evidence.
2.4.5 Judge’s summing up and directions to the jury
Essential reading
adversarial jury trial’, Section (d) ‘Judicial comment and summing up’ (available
on the VLE).
The chapters in this module guide discuss the relevant jury directions on the
different areas of evidence. The Crown Court Compendium (2018) Part 1: ‘Jury and
trial management and summing up’ (December 2018, available at: www.judiciary.
uk/publications/crown-court-compendium-published-december-2018/) (previously
known as the Judicial Studies Board Crown Court Bench Book) is a user guide for the
judiciary. Please note that judges are not intended to follow the specimen directions
in a mechanical fashion.
2.4.6 Appellate review
Essential reading
adversarial jury trial’, Section (e) ‘Appellate review’ (available on the VLE).
The bulk of the cases you read will be decisions by the Court of Appeal. Errors of
law, including misdirections to the jury and mistaken rulings on admissibility, are
an element in the Court’s decision as to the safety of the verdict in criminal cases,
although an error as such will not necessarily be decisive, especially if the prosecution
case is overwhelming. From this perspective the test is whether, absent that error,
the jury would have reached the same conclusion. On the other hand, especially with
the growing influence of Article 6 of the ECHR, it is now more likely that the Court of
Appeal will find a conviction unsafe even where there is no doubt about guilt but the
trial process has been vitiated by serious unfairness or a significant legal misdirection.
However, the trend towards expanding the discretion of the trial judge, noted
above, adds to reluctance on the part of the Court of Appeal to overturn a verdict (as
discussed by Roberts and Zuckerman).
Irrespective of the success or failure of an appeal against conviction, Court of Appeal

rulings are a crucial source of clarification of law.
1. What are the purposes of cross-examination?
2. What is a voir dire?
3. What is a submission of no case to answer?
4. What is the role of the trial judge in summing up to the jury in a criminal trial?
5. When will the Court of Appeal quash a conviction?

Having completed this chapter, and the Essential reading and activities, you should
be able to:
u present arguments on the relevance and admissibility of a given item of evidence
u explain what is meant by the following major technical terms used in evidence
law: direct evidence, circumstantial evidence, collateral facts, documentary
evidence, testimony, facts in issue, real evidence and hearsay
u explain the functions of judge and jury in a Crown Court trial
u explain the functions of cross-examination
u describe the impact of the Human Rights Act 1998 and the European Convention
on Human Rights on evidence law
u discuss the current objectives of evidence law and comment critically on them
u explain when the Court of Appeal has the power to quash a conviction.
Quick quiz
Question 1
Which case is the authority on how the judge should approach a submission of no case
to answer in a criminal trial?
a. Galbraith [1981] 1 WLR 1039.
b. Humphreys [1945] 3 WLR 203.
c. Peewall [1902] 1 WLR 737.
Question 2
In a defendant’s trial for murder, which of the following is an example of circumstantial
evidence?
a. An eyewitness account of the defendant stabbing the victim in the heart.
b. An eyewitness account of the defendant leaving the house of the victim shortly
after the victim’s time of death.
Question 3
What does s.78(1) of PACE 1984 provide?
a. It provides the court with a discretion to exclude evidence where its admission
would have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it.
b. It places a duty on the court to exclude evidence where its admission would have
such an adverse effect on the fairness of the proceedings that the court ought not
to admit it.
c. It provides the court with a discretion to exclude prosecution evidence in the

interests of ensuring the fairness of the trial.
Sample examination question

‘The concept of “relevance” is an imprecise one. In criminal trials this enables it
to be used as a cloak to obscure a court’s reasons for refusing to admit evidence.’
Discuss.
Advice on answering the question

This is a very difficult question and would not appear in the examination as we would not
have an examination question on the topic of relevance in isolation. We include it here to
demonstrate the depth of analysis possible into the concept of relevance so that you can
keep this in mind when exploring the topic of relevance in the context of later chapters.
The first step is to state what the test of relevance is supposed to be (you could use
the quote from DPP v Kilbourne) and the extent to which it governs the admissibility of
evidence (all relevant evidence is admissible unless subject to an exclusionary rule or
discretion).
Next you will want to discuss its operation in practice. You could describe how logical
relevance is established with reference to an argument based on an acceptable
generalisation about the way things are in the world. Give an example (it could be a case
such as Bracewell (1978) 68 Cr App R 44 – or a made up one) to demonstrate you know
what logical relevance means.
You will want to develop your discussion in such a way that you address the question. In
what way is the concept imprecise? Can you think of any examples in which the courts’
basis for refusing to admit evidence is obscure? What do you think is to blame for the
obscurity?
You might discuss the different concepts of relevance that courts often appear to draw
on in practice (perhaps the Wigmorean concept of legal relevance). Blastland is an
obvious example where the court’s basis for refusing to admit the evidence is obscure.
On what other grounds was the case criticised?
Your conclusion should be the result of your discussion. You might consider that the
obscurity of the courts’ reasoning would be clarified if they abandoned the concept of
logical relevance and adopted instead the test of legal relevance (you would need to
address the fact that the Wigmorean approach has itself been criticised for obscuring
the basis on which a decision on admissibility is reached). You might consider that
it is not imprecision in the concept of relevance that is to blame for the obscurity
of the court’s reasons for refusing to admit evidence, but the absence of any clearly
articulated discretion to exclude defence evidence. You might think that the criminal
courts should adopt a rule similar to that provided in civil trials (CPR r.22.1). This
permits the tribunal of law to exclude any logically relevant evidence, as a matter
of case management, to give effect to the overriding objective of dealing with cases
justly (you would need to address the different objectives of civil and criminal trials
and any implications this might have for the adoption of such a rule).
The important thing is to demonstrate that you understand the law and are capable of
considering the issues.
3 Burden and standard of proof
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Criminal trials before the Human Rights Act 1998 . . . . . . . . . . . . 23
3.2 The Human Rights Act 1998 and defence burdens in criminal trials . . . . 29
3.3 Directions to the jury and effects of misdirection in criminal trials . . . . 34
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Introduction
The rules and principles of evidence on burdens and standards of proof provide an
overarching structure of civil and criminal trials by determining:
1. Which party has the burden of bringing evidence on which facts in issue?
2. Where a party bears a burden, what test is applied to determine whether

sufficiently weighty evidence has been adduced to discharge the burden? There is
an important distinction between the legal burden – where a specific standard of
proof is required – and a merely evidential burden.
3. Which body (judge or jury) decides – and at what stage in the trial – whether the
relevant test has been satisfied?
In criminal proceedings the presumption of innocence is intimately connected with

the allocation of the legal burden of proof to the prosecution to prove all the essential
elements of their case beyond reasonable doubt, as famously stated by Lord Sankey
in Woolmington v DPP [1935] AC 462. However, Woolmington also noted exceptions
to this principle, where the defendant bears a legal burden. Such tensions with the
presumption of innocence in criminal offences were explored in earlier case law in
the context of implied statutory exceptions. Since the passing of the Human Rights
Act 1998 (HRA 1998) renewed and restructured judicial attention to reverse burdens in
relation to Article 6 (Right to a fair trial) of the European Convention on Human Rights
(ECHR).
You should also note that the presumption of innocence has a wider scope than
burden of proof issues. Chapter 5 examines the right to silence and the privilege
against self-incrimination in light of ss.34–37 of the Criminal Justice and Public Order
Act 1994, which permit inferences of guilt from a defendant’s silence.
Eye on relevance: This topic cannot be properly understood without paying attention
to relevance. Where a party bears a burden, it is always in respect to specific facts in
issue that are relevant to making their case. (See Chapter 2 on ‘facts in issue’.)
With respect to criminal trials, this chapter is organised in terms of before and after
the HRA 1998. This is slightly different from the arrangements of the core texts and
necessitates some skipping around but specific guidance on the readings is given here.
Core texts
¢ Choo, Chapter 2 ‘Burden and standard of proof’.
¢ Durston, Chapter 3 ‘The burden and standard of proof’.
Essential reading
¢ Cases: Woolmington v DPP [1935] AC 462; Edwards [1975] QB 27; Hunt [1987] AC
352; Nimmo v Alexander Cowan and Sons Ltd [1967] 3 All ER 187; Salabiaku v France
(1988) 13 EHRR 379; DPP ex p Kebilene [2000] 1 Cr App R 275; Lambert [2001] 3 All
ER 577; Johnstone [2003] UKHL 28; Sheldrake v DPP; A-G’s Reference (No 4 of 2002)
[2004] UKHL 43.
Learning outcomes
u state the Woolmington principle and exceptions
u explain the nature of the legal burden of proof and distinguish between legal
and evidential burdens
u understand the different standards of proof
u identify when a defendant in a criminal trial bears an evidential burden
u explain the difference between express and implied statutory exceptions
Evidence 3 Burden and standard of proof page 23
u explain the difficulties in determining whether a statute has impliedly placed a

burden of proof on defendants prosecuted under its provisions
u explain the role of extrinsic policy in the allocation of legal burdens in criminal
trials
u have developed a view on the extent to which Woolmington has been
undermined by subsequent statute and case law, if at all
u explain the effect of Article 6 of the European Convention on Human Rights
(ECHR) on placing a burden of proof on defendants in criminal trials
u analyse how the courts have interpreted reverse burdens under the HRA 1998
u offer and explain your views on whether a burden of proof should ever be placed
on defendants in criminal trials
u have a basic knowledge of jury directions and the effects of misdirection on
burden and standard of proof
u critically evaluate the law in this area
u apply the law in a problem scenario.
3.1 Criminal trials before the Human Rights Act 1998
3.1.1 General overview: The presumption of innocence and the burden of

proof
As famously stated by Lord Sankey in Woolmington v DPP [1935] AC 462 as the ‘golden
thread’ running throughout English criminal law, ‘it is the duty of the prosecution
to prove the prisoner’s guilt’. The presumption of innocence correlates with the
allocation of the burden of proof to the prosecution in three respects.
1. a. The legal burden lies on the prosecution to prove all the essential elements
of their case. This means that they must prove the relevant facts in issue as
determined by the definition of the offence.
b. The legal burden means that all the facts in issue for the prosecution case must
be proved beyond reasonable doubt (the criminal standard of proof).
c. Whether the prosecution has succeeded in discharging the burden of proof

beyond reasonable doubt on all the relevant facts in issue is determined by the
jury in deciding the verdict.
The fact that the prosecution must prove its case to a very high standard of proof
(beyond reasonable doubt) is also an inherent part of the presumption of innocence.
Correspondingly, it is not for the defence to prove the innocence of the defendant.
Hypothetically (inferences from silence to one side; see Chapter 5), the defence could
do nothing, or merely seek to create doubt through cross-examining prosecution
witnesses, and still achieve a not guilty verdict.
2. The presumption of innocence is also operative at an earlier moment in a criminal

trial. If, at the close of the prosecution’s presentation of their evidence, the court
finds that the prosecution has failed to provide sufficient evidence to make out a
prima facie case against the defendant, the judge will direct the jury at that point to
find a verdict of not guilty. (See Chapter 2 on ‘No case to answer’.)
3. Finally, if the defence offers sufficient evidence relating to a specific defence for
which they bear an evidential burden, the prosecution then bears the legal burden
of disproving (‘negativing’) that defence beyond reasonable doubt.
However, Woolmington also noted that there were exceptions to the golden thread by
which a legal burden was placed on the defence either at common law (insanity) or by
statute.
Activity 3.1
Why should the prosecution bear the overall burden of proof in criminal trials?
Note: P. Roberts ‘Taking the burden of proof seriously’ (1995) Crim LR 783 (‘Three
good reasons for putting the prosecution to proof’ (pp.785–88) (available in
Westlaw via the Online Library) is a useful source. It is extracted in Durston,
pp.99–100.
3.1.2 The nature of the legal burden of proof and the evidential burden
Core texts
¢ Choo, Chapter 2 ‘Burden and standard of proof’, Section 1.1 ‘The legal burden
and the evidential burden’ but only up to the first paragraph of Section 1.2.1.2
‘Express statutory exceptions’.
¢ Durston, Chapter 3 ‘The burden and standard of proof’, Sections 1 ‘Introduction’

to 5 ‘Evidential burdens’.
Essential reading
¢ Cases: Carr-Briant [1943] KB 607; Lobell [1957] 1 QB 547 (self-defence); Gill [1963]
2 All ER 688 (duress); Bratty v A-G for Northern Ireland [1963] AC 386 (sane
automatism); Lesley [1996] 1 Cr App R 39 (alibi); McNaghten’s Case (1843) 10 Cl &
Fin 200.
¢ Section 54(5) of the Coroners and Justice Act 2009 (loss of control); s.2(2) of the
Homicide Act 1957 (diminished responsibility).
Legal burden of proof: The legal burden of proof (also called the ‘persuasive’ or
‘probative’ burden) is the obligation that rests on a party in relation to a particular fact
in issue that must be ‘discharged’ (or ‘satisfied’) to a specified standard of proof if that
party is to win (i.e. convince the jury) on the issue in question. On matters where the
prosecution in a criminal trial bears the legal burden, the standard of proof is ‘beyond
reasonable doubt’.
Where the defence bears a legal burden in a criminal trial – a ‘reverse burden’ – the
standard of proof is the civil standard: the balance of probabilities (Carr-Briant [1943]
KB 603).
Why is a reverse burden called a ‘reverse’ burden? One reason is that usually the
prosecution is charged with proving facts in issue to a standard of proof, but here, on
certain facts in issue, it is the defence (albeit to the civil standard only). In other words,
a greater risk of failure is transferred to the defence.
An additional reason – widely but not unanimously shared – is that a reverse burden
also transfers the responsibility for proving certain types of facts, as Lord Hope puts it,
away from the prosecution to prove and onto the defence to disprove:
A ‘persuasive’ burden of proof requires the accused to prove, on a balance of probabilities,

a fact which is essential to the determination of his guilt or innocence. It reverses the
burden of proof by removing it from the prosecution and transferring it to the accused.
(Lord Hope in Kebilene at 378, emphasis added)
Lord Hope is here expressing a widely shared ‘gut level’ sensibility, common to many
members of the judiciary as well as legal academics and practitioners that a reverse
burden means that the defence is being required to do what ‘properly’ belongs to
the prosecutor. From this perspective, it should never be for the defence to have
to prove that they did not fulfil some aspect of either the actus reus or the mens rea
of an offence. But what if the offence, as defined in statute, has few or no mens rea
specifications (as in strict liability offences) and, in the same statute, a defence is
specified where the defendant may escape liability by proving, for example, their lack
of relevant knowledge? The objection here – and the idea of a ‘transfer’ – is not to
the actual statute but to an ideal of what ‘real’ criminal law should be like. In reading
judicial debate on reverse burdens both before and after the coming of HRA 1998,
you will frequently encounter the perspective expressed here by Lord Hope, although
expressed in many different ways (emphasis on culpability and blame, on mala in
se, etc.). You may well share it yourself and it will help your understanding if you
consider that now. In the final chapter, we will return to these issues of perspective
in terms of the debate between ‘substantivists’ like Lord Hope and ‘proceduralists’
(notably Roberts). Before that, in considering the pre-HRA 1998 debates about implied
exceptions, it is the ‘transfer’ of elements of the actus reus that is so hotly contested
by legal academics , notably Glanville Williams.
On either account, reverse burdens not only make it easier for the defence to lose;
they make it easier for the prosecution to win. The prosecution has less to prove and
the jury may not be convinced of the defence on the balance of probabilities.
Evidential burden: This is the burden of adducing sufficient evidence to satisfy the
judge that there is an issue to put before the jury. The prima facie case requirement
on the prosecution by ‘half time’ is likened to an evidential burden, although slightly
more is required (Jayasena v The Queen [1970] AC 618). (See Chapter 2 on ‘No case to
answer’.)
In parallel, for the defence, failure to satisfy the evidential burden at the close of the
defence case would result in the judge withholding that defence from the jury. The
evidential burden is thus sometimes called the burden of ‘passing the judge’.
All that is required to satisfy an evidential burden is for the party to adduce ‘some’
evidence, enough to make it a ‘live issue’ at the trial. For that reason, the evidential
burden is sometimes called the burden of ‘production’. The important point to grasp
is that it is not a burden of proof because there is no standard of proof required. For
example, for self-defence, it would be sufficient if the defendant testified to facts
indicating this; even cross-examination of a prosecution witness could be sufficient.
Bringing such evidence would potentially be sufficient to raise enough doubt in
the jury’s mind that they would not deem the prosecution case proved beyond
reasonable doubt.
You should familiarise yourself with the defences for which the defence bears an
evidential burden only. Many of these are common law defences but note that the
common law partial defence of provocation has been replaced by statute: the s.54(5)
of the Coroners and Justice Act 2009 loss of control defence expressly places an
evidential burden on the defence. These can be distinguished from reverse burdens
not only because of the lesser burden but also because (this is contestable) no
‘transfer’ is involved. Self-defence, for example, involves introducing a separate set of
facts. For this reason, these defences are sometimes called affirmative defences.
The only common law exception where the defence bears a legal burden is insanity,
as stated in Woolmington (McNaghten’s Case (1843) 10 Cl & Fin 200). Formally, a defence
of insanity is a rebuttal of the presumption of mental capacity that otherwise holds
for all criminal trials. It is also consistent with the statutory reverse legal burden in
respect to diminished responsibility (s.2(2) of the Homicide Act 1957). Whether the
insanity exception is justifiable has been a matter of debate but is not an issue pursued
here. (Of possible interest: H v United Kingdom, Application No 15023/89, in which
the complaint was that the burden on the accused in criminal proceedings to prove
insanity on the balance of probabilities was contrary to the presumption of innocence
and in violation of Article 6(2).)
3.1.3 Express and implied exceptions/‘reverse burden’
Core texts
¢ Choo, Chapter 2 ‘Burden and standard of proof’, Section 1.2.1.3 ‘Implied statutory
exceptions’, up to p.38.
¢ Durston, Chapter 3 ‘The burden and standard of proof’, Section 2 ‘Legal burdens
in criminal matters’, subsections ‘Express statutory exceptions’, ‘Implied
statutory exceptions, ‘The scope of implied burdens’, ‘Criticism of reverse onus
provisions’.
Essential reading
¢ Criminal Law Revision Committee, Eleventh report, evidence (general) (1973)
para. 140, pp.88–90 (available on the VLE).
¢ Cases: Edwards [1975] QB 27; Hunt [1987] AC 352; Nimmo v Alexander Cowan and
Sons Ltd [1967] 3 All ER 187.
¢ Section 139 of the Criminal Justice Act 1988.
Note on terminology: (i) the expression ‘statutory exception’ means exception to

the normal rule that the prosecution bears the legal burden, and (ii) ‘reverse burden’
always means reverse legal burden.
Express reverse burdens: ‘Express’ means that the statute makes it clear that the
defence bears the legal burden in respect to a statutory defence by using terms such
as ‘it shall be for the defence to prove’ or ‘show’ or ‘…the burden whereof shall be on
the accused’. For example, s.139 of the Criminal Justice Act 1988 makes it an offence to
be in possession of an article with a blade or point in a public place but s.4 provides
that ‘it shall be a defence [...] to prove that he had good reason or lawful authority
for having the article with him in a public place’ and s.5 further specifies ‘it shall be
a defence for a person charged with an offence under this section to prove that he
had the article with him – (a) for use at work; (b) for religious reasons; or (c) as part
of any national costume’ (emphasis added). (In L v DPP [2002] 2 All ER 854, the reverse
burdens in this statute were found compatible with Article 6(2) of the ECHR.)
There are many other examples of express statutory exceptions/reverse burdens, for
example: s.13 of the Bribery Act 2010; s.1(1) of the Prevention of Crime Act 1953 and
s.2(2) of the Homicide Act 1957 (diminished responsibility); s.31(7) of the Immigration
and Asylum Act 1999.
The justifications for imposing such legal burdens are that there is held to be a strong
public interest in controlling such behaviour and yet it is not difficult for the defendant
to prove the defence.
Implied reverse burdens: With implied statutory exceptions/reverse burdens, the

statute does not make the allocation of the legal burden explicit. The court must
therefore determine whether Parliament intended to impose a legal burden on the
defence. For summary trials, s.101 of the Magistrates’ Courts Act 1980 (formerly s.81
of the Magistrates’ Courts Act 1952) is an aid to statutory interpretation: ‘Where the
defendant to an information or complaint 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’ (emphases added). In
Edwards [1975] QB 27 it was held that there is a closely similar rule at common law and
Hunt [1987] AC 352 held that this rule applied to trials on indictment. In order to escape
liability, the defendant must prove on the balance of probabilities that they fall within
the exemption, etc. An example of an exemption, etc. in an express reverse burden
is s.139 of the Criminal Justice Act 1988 defence in ss.4 and 5 of having ‘good reason or
lawful authority’ to be carrying a bladed article in a public place, for example, as part
of a national costume (see above).
In Edwards, the defendant had been convicted of selling alcohol without a licence. The
statute was silent as to the allocation of the burden for proving whether the defendant
had or had not a licence, once selling alcohol was shown by the prosecution. On
appeal, Edwards argued that the burden lay on the prosecutor but the court saw ‘with
a licence’ as in effect lawful authority for an otherwise prohibited activity (selling
alcohol), followed the claimed rule of interpretation and ruled that the defendant
bore the burden. At the same time, Lawton J also acknowledged that this was ‘an
exception to the fundamental rule of the criminal law that the prosecution had to
prove every element of the offence charged’ (at 27).
The justification was that this anomaly arises only in relation to a limited class of
offences. Put more widely than in Edwards, such low-level ‘regulatory offences’
concern activities that generically pose a danger to the public at large if they are not
conducted under certain conditions, often managed literally through licensing (selling
alcohol, driving a car) or some other required authorisation. The implication is that
Woolmington’s ‘golden thread’ is reserved for ‘real’ crimes.
An important background case, approved in Hunt, is the Scottish case of Nimmo v

Alexander Cowan and Sons Ltd [1967] 2 All ER. This case is also broadly regulatory in
character in that it concerned health and safety requirements (it was a civil action
but the section also created a summary criminal offence, so, in Lord Griffiths’ view,
the same question would have arisen in a prosecution). An employee of a factory
was unloading railway wagons filled with bales of pulp for which he was required to
stand on some bales. The bales were insecure and when one tipped, the employee
fell, hitting his head and fracturing his skull. He claimed that the factory employer was
in breach of their statutory duty under s.29(10) of the Factories Act 1961 to keep the
workplace safe:
There shall, so far as is reasonably practicable, be provided and maintained safe means of
access to every place at which any person has at any time to work and every such place shall,
so far as is reasonably practicable, be made and kept safe for any person working there.
However, there was a qualification to the duty: ‘so far as reasonably practicable’.
Did the burden rest on the claimant (the employee) to show that it was reasonably
practicable to keep the workplace safe or the defendant (the employer) to prove that
it was not? The wording of the statute was of no help; as Lord Griffiths comments on
it in Hunt, ‘what might be regarded as a matter of defence appears in a clause creating
the offence’. As with Edwards, the ‘logic’ of reverse burdens seems very different from
the common law examples, such as self-defence, where it appears there is a clear
difference between offence and defence.
You should familiarise yourself with the basic facts of Hunt. As before, the issue of
which party has to prove (or disprove) the exception is bound up with the question
of whether that is part of the definition of the offence or a separate defence. Lord
Griffiths’ famous speech points outside such doctrinal questions to other, extrinsic
policy considerations (‘practical matters’) to be taken into account by the court
in order to decide Parliament’s intentions. His words continue to have weight in
contemporary cases decided with reference to the HRA 1998:
... if the linguistic construction of the statute did not clearly indicate on whom the burden
should lie the court should look to other considerations to determine the intention
of Parliament, such as [1] the mischief at which the Act was aimed and [2] 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. When all the cases are analysed, those in which
the courts have held that the burden lies on the defendant are cases in which the burden
can be easily discharged.
([at 374] (emphasis added))
Edwards and especially Hunt (despite its favourable outcome for the defendant)
produced significant legal academic outrage at the time. In ‘The logic of exceptions’
(1988) Glanville Williams wrote: ‘Every so often the Appeal Committee of the House
of Lords produces a decision that sets back the rational development of the criminal
law for several years or decades...Now, in Hunt, they have done it again’ (p.261). He
makes two particularly powerful arguments. First, that Hunt effectively generalised
the possibility of judges finding implied exceptions far beyond the narrow straits
of Edwards. Second, that Lord Griffiths (inspired by Nimmo) justifies the derogation
from Woolmington solely on the basic of extrinsic policy: the relative ease of proof for
prosecutor or defendant.
In 1973 the Law Revision Committee had argued in its 11th report on evidence (general)
that Parliament should legislate that (almost) all defences, common law and statutory,
express or implied, should be reduced to imposing evidential burdens only. It is
worth reading the few paragraphs available on the VLE for a sense of their arguments.
Parliament was unmoved.
Blake and Ashworth’s famous 1996 study found 540 offences triable on indictment
(in the Crown Court) with reverse legal burdens or presumptions favouring the
prosecution.
Since October 2000, statutes with express and implied reverse burdens, as well as
common law reverse burdens, are subject to the new interpretive regime under the
HRA 1998. Judges now have the power to ‘read down’ reverse burdens to evidential
burdens under s.3 of the HRA 1998. Would the 1998 Act ‘encourage a reconsideration
of a trend which has, for over a decade, been exposed to powerful criticism’ (Lord
Clyde in Lambert at [155])? Yet many of the concerns and considerations in these
earlier judicial skirmishes with implied exceptions foreshadow post-HRA 1998 judicial
wrangling over express as well as implied exceptions. Please spend some time
reflecting on the following questions.
Activity 3.2
These questions do not have right or wrong answers. Rather, they are designed
to promote preliminary reflection on the issues initially raised by implied reverse
burdens that return under the HRA 1998 cases discussed in the next part of this
chapter.
a. Rape is sexual intercourse without consent. Therefore – like selling alcohol
without a licence – should there be a legal burden on the defendant to prove
consent? If not, why not?
b. Should the same rules apply to indictable and summary offences even though
the penalties and sentencing powers are so different?
c. In your opinion, which party should bear the legal burden of proof in Nimmo v
Alexander Cowan and for what reasons? Would it make a difference if, instead of
the employee (a poorly paid manual worker) bringing a civil action, it was the
public prosecutor bringing a criminal action?
No feedback provided.
Further reading
¢ Blake, M. and A. Ashworth ‘The presumption of innocence in English criminal
law’ (1996) Crim LR 306.
¢ Williams, G. ‘The logic of exceptions’ (1988) 47(2) CLJ 261.
Learning outcomes
By this stage you should be able to:
u understand the difference between express and implied statutory exceptions
trials
u have developed views on the extent, if at all, to which Woolmington has been
undermined by subsequent statute and case law.
3.2 The Human Rights Act 1998 and defence burdens in

criminal trials
Core texts
¢ Choo, Chapter 2 ‘Burden and standard of proof’, Sections 1.2.1.2 ‘The effect of the
Human Rights Act 1998’, and 1.2.1.3 ‘Implied statutory exceptions’ starting from
p.39.
¢ Durston, Chapter 3 ‘The burden and standard of proof’, Section 3 ‘Reverse

burdens of proof and human rights’.
Essential reading
¢ Dennis, I. ‘Reverse onuses and the presumption of innocence: in search of
principle’ (2005) Crim LR 901.
¢ Cases: Salabiaku v France [1988] 13 EHRR 379; DPP ex p Kebilene [2000] 1 Cr App R
275; Lambert [2001] 3 All ER 577; Johnstone [2003] UKHL 28; Sheldrake v DPP; A-G’s
Reference (No 4 of 2002) [2004] UKHL 43.
Further reading
¢ Hamer, D. ‘The presumption of innocence and reverse burdens: a balancing act’
(2007) 66(1) CLJ 142.
¢ Roberts, P. ‘The presumption of innocence brought home? Kebilene

deconstructed’ (2002) 118 LQR 41.

para.140, pp.88–90 (available on the VLE).
¢ Glover, R. ‘Regulatory offences and reverse burdens: the licensing approach’

(2007) 71 J Crim L 259.
Article 6 of the ECHR (Right to a fair trial) identifies the presumption of innocence
as a key component of a fair trial: ‘Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law’ (Article 6(2)). These new
powers and interpretive obligations under the HRA 1998 saw the appeal courts engage
with the implications of Article 6 in ways that were not previously required of or
available to them. Before the HRA 1998, express reverse burdens were ‘automatic’,
meaning that the courts had no power to challenge what Parliament explicitly laid
down. Implied reverse burdens have also been tested in the courts for Convention
compliance.
3.2.1 European Convention on Human Rights, Article 6

It is accepted that it is never a violation of Article 6 of the ECHR for the defendant to
bear an evidential burden only. In Bianco [2001] EWCA Crim 2516, the Court of Appeal
affirmed that a defence evidential burden is compatible with Article 6 as it does not
interfere as greatly with the presumption of innocence as placing a legal burden on
the defendant. This was unanimously accepted by all members of the House of Lords
in Sheldrake v DPP; A-G’s Reference (No 4 of 2002) [2004] UKHL 43.
If the court decides that a legal burden placed on the defendant by a provision of
domestic law (common law or statute) is incompatible with Article 6, the court can
‘read down’ that provision under s.3 of the HRA 1998. No reverse burden case has ever
resulted in a s.4 declaration of incompatibility.
(It will be helpful if you revisit Chapter 2 for a reminder of the stages of judicial
interpretation under the HRA 1998.)
The crucial first question, therefore, is whether it is necessarily contrary to Article

6 for the defence to bear a legal burden. Looking to European Court of Human
Rights (ECtHR) jurisprudence, Salabiaku v France (1988) 13 EHRR 379 provided a broad
answer. Salabiaku concerned a provision of the French customs code that enabled a
presumption of liability for smuggling to be drawn if a person was found in possession
of prohibited goods (in what was virtually a strict liability offence).The Court stated
that the rights comprised in Article 6(2) are not absolute. As Lord Bingham put it later
in Sheldrake: ‘The overriding concern is that a trial should be fair [Article 6(1)], and the
presumption of innocence [Article 6(2)] is a fundamental right directed to that end’
(see Chapter 9 on hearsay for a parallel argument in respect to the relation between
Article 6(3)(d) and Article 6(1)). However, Salabiaku did set out limitations on when
a presumption favourable to the prosecution could be compatible with Article 6.
By extension, Salabiaku is taken to mean that reverse burdens are not necessarily
incompatible with Article 6 as long as the same limitations are observed. Salabiaku
is often criticised for vagueness and contrasted with more robust decisions by the
ECtHR in respect to the related right to silence (see Chapter 5). Indeed, the ECtHR finds
strict liability offences compatible with Article 6. On the other hand, how far should
the ECtHR involve itself in what would be, in effect, the substantive criminal law of
individual national courts – their right to define criminal offences as they choose – or
their adjudicative independence in matters of evidence (margin of appreciation)?
Activity 3.3
What conditions did the European Court of Human Rights stipulate in Salabiaku for
determining whether presumptions favourable to the prosecution comply with
Article 6(2)?
In determining whether it is compatible with Article 6 for legislation (or common law)
to impose a legal burden on defendants, the courts frequently invoke ‘proportionality’.
‘Proportionality’ is a term of art in human rights jurisprudence more generally and
so you should already be familiar with this concept. It entails posing two questions:
first, is the domestic law in question in pursuit of a legitimate aim? It would be quite
extraordinary if the court found against this, given Parliamentary supremacy and the
division of powers. Second, is the provision under consideration proportionate to
achieving that aim? In Janosevic v Sweden (2004) 38 EHRR 473 the ECtHR produced a
clear formulation:
Contracting States are required to strike a balance between the importance of what is
at stake and the rights of the defence; in other words, the means employed [including
reverse burdens] have to be reasonably proportionate to the legitimate aim to be
achieved.
3.2.2 Reading the key cases

The approach in the rest of this section is essentially a guided reading of five key
express reverse burden cases. The articles by Dennis and Hamer will help you to get
the most out of the case law. It is important to realise that the judges in these cases are
not deciding the allocation of legal burdens (i.e. which party bears a burden).
When is it proportionate for a burden borne by a defendant to be a legal burden?

‘Balance’ is an analogue term for proportionality and also echoes Salabiaku’s
‘reasonable limits’. The speech of Lord Hope in DPP ex p Kebilene [2000] 1 Cr App R 275
remains an important point of reference on balancing the potentially competing
interests of ‘the community’ in controlling crime, especially certain types of crime, and
the due process rights of the defendant.
Activity 3.4
a. In Kebilene, what three questions did Lord Hope suggest broke down the broad
issue of balance into its essential components?
b. How did they guide him in forming a view on the Article 6(2) compatibility of a
reverse onus in this case?
Have the courts succeeded in translating such general ideas into working criteria of
compatibility, and how are such criteria to be weighed against each other? Legislative
aims are largely consequentialist (see Chapter 2) and focused on crime control, law
enforcement and potentially easing the task of the prosecution. Against this are rights-
based arguments favouring the defendant.
Lambert initially seemed to offer an answer. Lambert (along with A (No 2) (2001) – see
Chapter 7) was one of the earliest decisions of the Supreme Court when the HRA 1998
was coming into force. Both cases are sometimes seen in retrospect as examples of
adventurous judicial activism possibly straining the boundary between the judiciary
and Parliament, especially in respect to the original intention of the legislation in
question.
Activity 3.5
a. In Lambert, what did the prosecution have to prove in order to succeed?
b. What is the defence available in s.28 of the Misuse of Drugs Act 1971?
c. How, according to Lord Steyn, is this in conflict with the presumption of

innocence?
d. Why, according to Lord Steyn, is there an objective justification for some

interference with the burden of proof in prosecutions under s.5 of the Misuse of
Drugs Act 1971?
e. How did the court ultimately resolve the issue under s.3 of the HRA 1998?
f. What were Lord Hutton’s dissenting arguments?
Johnstone, by contrast, seemed to take the courts in a different direction. While the
offence in question was clearly a regulatory one, it carried a high penalty. Nonetheless,
the Supreme Court held that a reverse legal burden was justified in respect to a
statutory defence concerning the defendant’s knowledge.
Activity 3.6
a. What were the terms of the statutory defence relied on in Johnstone?
b. For what ‘compelling reasons’ did Lord Nicholls find that a legal burden on the
defendant was appropriate?
c. Do you find it a problem that, as Lord Nicolls remarks, the offences created
by s.92 have rightly been described as offences of ‘near absolute liability’?
The prosecution is not required to prove intent to infringe a registered trade
mark. Or is this reasonable, given the nature of the crime, difficulties of proof
for the prosecutor and the ‘assumption of risk’ that persons engaging in such
commercial activities willingly take on for gain?
(Here we are not considering the Court of Appeal case A-G’s Reference (No 1 of 2004)
which found fundamental conflicts between Lambert and Johnstone and ruled that the
courts should follow the latter.)
Finally, in the conjoined appeals in Sheldrake and A-G’s Reference (No 4 of 2002) [2004]
UKHL 43, the Court decided that a reverse burden was justified in one but not the other.
Activity 3.7
What were the key differences between Sheldrake and A-G’s Reference (No 4 of 2002)
that led to different decisions in the two cases on the compatibility of a reverse
burden with Article 6?
In seeking to draw these key cases together, it is useful to use Ian Dennis’s analysis of
the range of factors that have been employed. Some of these go back to Lord Griffiths
in Hunt [1987] AC 352.
Activity 3.8
a. What six factors does Dennis identify as playing a part in judicial decisions on
Article 6 compatibility?
b. What is meant by ‘judicial deference’? What stances on judicial deference are

found in Kebilene and Johnstone by contrast to Sheldrake? What was Lord Woolf’s
stance in Lambert?
c. What is the difference between offences classified as mala in se and mala
prohibita? What is meant by the ‘gravamen’ of an offence? Do judges always
equate the gravamen of an offence with its definition? See especially Lord Clyde
in Lambert.
d. Why would it be helpful to distinguish between elements of the offence

and defences and what problems are there in identifying these differences?
Consider: Lord Hope in Lambert, referring to Edwards; Lord Rodger in Sheldrake.
Also consider Lord Steyn in Lambert and the Court of Appeal in A-G’s Reference
(No 4 of 2002) suggesting that discovering the ‘gravamen’ of the offence may
blur the distinction. Is it better to concentrate on the nature of the moral
blameworthiness?
e. Why are maximum penalties significant – is there a conflict between taking

penalties as indicative of the seriousness of the offence (harm to the state and
the community) and the consequences of conviction for the defendant? See
Lord Steyn in Lambert, Sheldrake and A-G’s Reference (No 4 of 2002). But contrast
Johnstone.
f. How is ease of proof different from ‘peculiar knowledge’? To what extent do

problems of proof for the prosecution justify transferring the burden of proof
to the defendant? Is it true that the easier it is for the accused to discharge the
burden, the more likely it is that the reverse burden will be held to be justified?
Note the references to ‘peculiar knowledge’ by Lord Hope in Kebilene, Lord Clyde
in Lambert and Lord Nicholls in Johnstone.
g. What does Dennis mean by saying that for Strasbourg the presumption of
innocence is essentially a procedural principle? Have the English courts also
regarded the presumption of innocence as purely procedural in decision making
under the HRA 1998?
h. What is Dennis’s overall conclusion on the coherence and predictability of this

area of law?
3.2.3 Critical evaluation of reverse burdens
Essential reading
¢ Munday, ‘Criminal offences properly so-called and regulatory legislation’ pp.94
and 95 and ‘Statutes that impose strict liability’ pp.101 and 102 (available on the
VLE).
¢ Glover, R. ‘Regulatory offences and reverse burdens: the licensing approach’

(2007) 71 J Crim L 259 (available through the Online Library).
¢ Roberts and Zuckerman, ‘6.6 Woolmington’s legacy and the presumption of

innocence’ (available on the VLE).
¢ Cases: Wholesale Travel Group Inc [1991] 3 SCR 154.
Dennis’s analysis suggests a messy state of affairs in which it is difficult to see much
pattern or predictability. However, some writers suggest that this is because there are
different models in conflict: (1) regulatory governance – future oriented and highly
consequentialist, and (2) a classic criminal law and rights model. Cory J’s analysis in the
Canadian case of Wholesale Travel Group Inc [1991] 3 SCR 154 identifies the contrast:
The objective of regulatory legislation is to protect the public (such as employees,

common consumers and motorists, to name but a few) from the potentially adverse
effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis
from the protection of individual interests and the deterrence and punishment of acts
involving moral fault to the protection of public and social interests. While criminal
offences are usually designed to condemn and punish past, inherently wrongful conduct,
regulatory measures are generally directed to the prevention of future harm through the
enforcement of minimum standards of conduct and care.
[...] those who choose to participate in regulated activities have…placed themselves in
a responsible relationship to the public generally and must accept the consequences of
that responsibility…those who engage in regulated activity should...be deemed to have
accepted certain terms and conditions applicable to those who act within the regulated
sphere.
Regulatory offences are thus mere mala prohibita as opposed to ‘true crimes’.
Various writers have tried to explain why reverse burdens are more acceptable from
a regulatory perspective. Glover takes the case of Johnstone and the principle of
‘voluntary acceptance of risk’ as core. Munday notes Lord Clyde’s speech in Lambert.
Other relevant cases are Davies v Health and Safety Executive [2002] EWCA Crim 2949 and
Chargot Ltd [2008] UKHL 73. Also highly relevant is the implied reverse burden case of
Grundy & Co Excavations Ltd v Halton Division Magistrates Court [2003] EWHC 272 where
it was held that it was proportionate, necessary and compatible with Article 6(2) for
the defendant to bear the burden of showing they had the appropriate licence to fell
trees. While not regulatory in the strict sense, legislation designed to prevent crime
(such as terrorism legislation) bears some similarities, although here reverse burdens
have frequently been seen as incompatible with Article 6(2).
By contrast, the classic model is focused on offences already committed, not potential
crimes of the future. This perspective is highly conditioned by the issue of what can
justify the punishment of those convicted of crimes. Proof of blameworthiness and
fault (and hence mens rea) by the prosecution is seen as critical. Equally, where a
‘prohibited act’ does not seem wrong in itself (although it may make sense to penalise
it to prevent future crimes), this makes it difficult to identify the ‘gravamen’ of the
offence. Very many of the judgments that you have read in connection with this
chapter reflect this classical perspective (and it may well also be your own underlying
sensibility). So, would it be a solution to separate out regulatory from other criminal
offences?
One of the key signs of the presence of this perspective is reference to the prosecutor
normally having to prove all the ‘essential elements’ of the offence. But often this
is not the same as the way the offence is formally defined. So, when judges or legal
writers invoke these ‘essential elements’ (mens rea and an actus reus that is wrong in
itself), they are adopting a normative, or ‘substantively based’ position (meaning an
implicit philosophy of criminal law) in order to evaluate the law of evidence.
Standing against this implicit approach are proceduralists (notably Roberts). They
say that all the presumption of innocence means is that the elements of the crime –
however it happens to be defined – be proved by the prosecution: ‘The presumption
of innocence is a presumption that one is not guilty of whatever may be the elements
of a criminal offence’ (Lord Phillips in G [2006] 1 WLR 2052 at [36]). Arguably, this is the
stance of the ECtHR in respect to Article 6. Hamer provides a good account of what this
debate is all about (see also the extract from Roberts and Zuckerman).
These wider perspectives may be difficult to grasp in more than outline form but they
suggest some underlying conflicts patterning the seeming randomness of judicial
decision-making on reverse burdens.
Further reading
¢ Roberts, P. ‘The presumption of innocence brought home? Kebilene
deconstructed’ (2002) 118 LQR 41.
¢ Hamer, D. ‘The presumption of innocence and reverse burdens: a balancing act’

(2007) 66(1) CLJ 142.

u analyse how the courts have interpreted reverse burdens under the HRA 1998.
3.3 Directions to the jury and effects of misdirection in criminal

trials
Core texts
¢ Choo, Chapter 2 ‘Burden and standard of proof’, Section 2.1.1.4 ‘Effect of
misdirection’.
¢ Durston, Chapter 3 ‘The burden and standard of proof’, Section 6 ‘The standard
of proof in criminal and civil matters’ up to but excluding ‘Standard of proof in
civil cases’.
Essential reading
¢ Crown Court Compendium (2018) Part 1: Section 5 ‘Burden and Standard of Proof’
www.judiciary.uk/publications/crown-court-compendium-published-
december-2018/
At the close of the trial, the judge is required to direct the jury both as to how the
allocation of the burden of proof relates to the primary facts in issue and the relevant
standard of proof required. A misdirection (or failure to give a direction) on burden
and standard of proof is highly likely to lead to the quashing of a conviction on appeal.
As to the form of words used to convey the standard of proof, the expression ‘beyond
reasonable doubt’, and especially judges’ remarks in response to jurors’ requests for
clarification, have led to significant appeals. (Durston provides a brief summary in ‘The
prosecution standard of proof’.) To remedy this, following Lord Goddard in Summers
(1952) 36 Cr App R 14, the words ‘satisfied so that you feel sure’ or ‘more simply’ ‘sure
of guilt’ are preferred today. However, problems arose in Majid [2009] EWCA Crim 2563
where the judge tried to distinguish being sure from being certain (see also Stephens
[2002] EWCA Crim 1529). Today the emphasis is away from requiring judges to follow
formulas slavishly. It is enough if they convey the correct message to the jury through
the substance of the direction as a whole.
Where the defendant has the burden of proving an issue, the standard may be
conveyed by the phrase ‘more probable than not’ and possibly adding ‘the defendant
does not have to go so far as to make the jury sure this was the case’.
See Choo for discussion of misdirections in: Zarrabi (1984) The Times, 23 February 1985;
Moon [1969] 1 WLR 1705; O’Brien [2004] EWCA Crim 2900. Note in Moon and O’Brien the
need to direct the jury on the prosecutor’s burden to rebut any defence put to the jury
that carries an evidential burden only. For a striking example of an incorrect direction,
which clearly shows how the wrong message may be conveyed through the direction
overall, see Bentley (2001) 1 Cr App R 21 at [49].
Further reading
¢ Cases: Carr-Briant [1943] KB 607; Bentley (2001) 1 Cr App R 21.

be able to:
u understand the difference between express and implied statutory exceptions
trials
u have developed a view on the extent, if at all, to which Woolmington has been
undermined by subsequent statute and case law
u analyse how the courts have interpreted reverse burdens under the HRA 1998
u offer and explain your views on whether a burden of proof should ever be placed
on defendants in criminal trials
u have a basic knowledge of jury directions and the effects of misdirection on
burden and standard of proof
Quick quiz
Question 1
On which two grounds did the House of Lords decide that the prosecution bore the
burden of proof in relation to the issue of the percentage of morphine in Hunt [1987]
AC 352?
a. The practical difficulties in discharging it and the severity of the offence.
b. The statutory wording of the provision and the ‘golden thread’.
c. The danger society faced from the menace of illegal drugs and the ambiguity of
statutory provision.
Question 2
In which House of Lords’ decision was it first established that a statutory provision
that expressly placed the burden of proof on a defendant in a criminal trial could be
interpreted in light of the HRA 1998 to place only an evidential burden on the defendant?
a. Lambert [2002] 2 AC 545.
b. Edwards [1975] QB 27.
c. Woolmington v DPP [1935] AC 462.
Question 3
In Johnstone [2003] UKHL 28 the House of Lords decided which of the following?
a. The prosecution bore the legal burden on account of the severity of the sentence.
b. The defence bore the legal burden on account of the fact that those who trade in
brand products are aware of the need to be on guard and the practical difficulties
for the prosecution in tracing the suppliers of counterfeit goods.
c. The defence bore the legal burden on account of the public interest in combating
drug trafficking and the practical difficulties of proving a defendant’s state of mind.
Question 4
In relation to the decision of the House of Lords in Sheldrake v DPP; A-G’s Reference (No 4
of 2002) [2004] UKHL 43, which of the following statements is correct?
a. The House of Lords decided that the legal burden of proof placed on the defendant
by s.5(2) of the Road Traffic Act 1988 should stand, and not be read down as an
evidential burden but that the legal burden of proof placed on the defendant by
s.11(2) of the Terrorism Act 2000 should be read down as an evidential burden only.
b. The House of Lords decided that the legal burdens placed on the defendant
by s.5(2) of the Road Traffic Act 1988 and s.11(2) of the Terrorism Act 2000 were
proportionate.
c. The House of Lords decided that neither s.5(2) of the Road Traffic Act 1988 nor
s.11(2) of the Terrorism Act 2000 placed an express burden on the defendant.
Question 5
Which of the following statements is correct?
a. Legal burdens on the defendant in a criminal case are controversial because it

is unfair for the defendant to have to prove their innocence beyond reasonable
doubt.
b. In civil cases the claimant must prove the issues that they assert to be the case
beyond reasonable doubt.
c. Where the defendant in a criminal trial bears the legal burden of proof, the
standard of proof is ‘on the balance of probabilities’.

‘It remains difficult to predict whether or not the courts will hold that a reverse
burden of proof is compatible with Article 6(2) of the European Convention on
Human Rights.’ Discuss.

You need to demonstrate that you understand what a reverse burden of proof is and
that you know what Article 6(2) of the ECHR provides. You should do this at the outset.
You might also mention Salabiaku v France (1988) 13 EHRR 379 in your introduction.
In your first paragraph you could discuss the decision in Lambert. You could note the
number and name of House of Lords’ decisions on this issue before discussing them in
detail in subsequent paragraphs.
In the main body of the essay you need to demonstrate understanding that a broad
proportionality test applies to all reverse burdens of proof and the different factors
typically taken into account. You can highlight the difficulty of prediction by noting
the inconsistencies between the decisions, as observed by Ian Dennis in his article.
The best answers will not just parrot Dennis’s argument but will demonstrate your
detailed understanding of case law and the issues at stake. Ideally your opinion would
be informed by the arguments you come across in the Further reading.
Additional examination question

‘In order to merit its reputation as a fundamental constitutional guarantee,
the presumption of innocence must be reasonably extensive and not too easily
defeated.’ Do you agree with this statement by Roberts and Zuckerman? In the
context of legal burdens of proof, has English law succeeded in ensuring that the
presumption of innocence is ‘not too easily defeated’?
Notes
4 Confessions and improperly obtained evidence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.2 Section 78(1) of PACE 1984 . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Introduction
As there are substantial overlaps, this chapter has been divided into roughly three
main parts. You will find the Essential and Further reading listed in the introduction to
each of the following three parts:
1. The first concerns the admissibility of confessions. By s.82(1) of the Police and
Criminal Evidence Act 1984 (PACE 1984), a confession includes ‘any statement
wholly or partly adverse to the person who made it, whether made to a person
in authority or not and whether made in words or otherwise’. Confessions are
in principle admissible as exceptions to the rule against hearsay under s.76(1).
Confessions can be excluded under ss.76 and 76A of PACE 1984.
2. The court has a discretion to exclude any prosecution evidence (including

confessions adduced by the prosecution) under s.78 of PACE 1984. Section 78
requires careful attention because its interpretation has given rise to a large body
of Court of Appeal decisions, some of which appear to be inconsistent.
3. The third main topic is entrapment. Entrapment is where agents of the state lure
citizens into committing criminal acts and then seek to prosecute them for doing
so. The appropriate remedy for entrapment is for the proceedings to be stayed as
an abuse of the court’s process.
Articles 6 and 8 of the European Convention on Human Rights (ECHR) are important
considerations under all three topics.
Core texts
¢ Choo, Chapter 4 ‘Confessions’.
¢ Durston, Chapter 7 ‘Confession evidence and related matters’.
Learning outcomes
u explain the grounds for excluding confessions under s.76(2) of PACE 1984
u explain the extent to which a co-defendant may be entitled to rely on a
confession by another defendant that has been obtained by improper means
u explain how exclusion of a confession may affect the admissibility of
subsequently discovered facts mentioned in the confession
u explain the arguments that can be advanced for a narrow and a wide
interpretation of s.78(1) of PACE 1984
u explain the impact of the ECHR on evidence obtained by intrusive surveillance
devices and on evidence obtained by entrapment
u describe the common law discretion to exclude prosecution evidence
u identify and explain entrapment and the appropriate remedy for it.
Evidence 4 Confessions and improperly obtained evidence page 41
4.1 Confessions
Core texts
¢ Choo, Chapter 4 ‘Confessions’.
¢ Durston, Chapter 7 ‘Confession evidence and related matters’, Sections 1

‘Introduction’ to 9 ‘The admissibility of a co-defendant’s confession’.
Essential reading
¢ Code of Practice for the Detention, Treatment and Questioning of Persons
by Police Officers (Code C) of PACE 1984, including its annexes (available at:
www.gov.uk/government/publications/pace-code-c-2018).
¢ Sections 58, 75, 76 and 76A of PACE 1984.
¢ Case: Lam Chi-Ming v The Queen [1991] 2 AC 212.
Although confessions are out-of-court statements adduced to prove the truth of their
contents, they are admissible as an exception to the hearsay rule under s.76(1) of PACE
1984. However, it is recognised that considerations of fairness or reliability may make
it undesirable to admit evidence either of a particular confession or of other items
of evidence on which the prosecution proposes to rely. The Codes of Practice issued
under PACE 1984 are designed to ensure reliability and fairness. Code C, which deals
with the detention, treatment and questioning of persons by police officers, will be of
particular importance when you study the subject matter of this chapter.
You should make yourself familiar with the main provisions of Code C, including its
annexes; with s.58 of PACE 1984, on the right to access to legal advice; and with subss.6
to 8A on when delay in providing legal advice is permissible. When reading Code C, pay
particular attention to the conduct of interviews.
Further reading
¢ Cases: Fulling [1987] 2 All ER 65; Emmerson (1990) 92 Cr App R 284; Paris, Abdullahi,
Miller (1992) 97 Cr App R 99; Goldenberg (1988) 88 Cr App R 285; McGovern (1990)
92 Cr App R 228; Delaney (1988) 88 Cr App R 338; Crampton (1990) 92 Cr App R 369;
Everett [1988] Crim LR 826; Blackburn [2005] EWCA Crim 1349; Mushtaq [2005] 2
Cr App R 485; SY [2012] EWCA Crim 814; Seelig [1991] 4 All ER 429; Smith [1994] 1
WLR 1396, 99 Cr App R 233, CA; Gowan [1982] Crim LR 821, CA; Beeres v CPS West
Midlands [2014] EWHC 283 (Admin).
It is a good idea to read, in full, as many of these cases as you can. They will give
you a good feel for the application of s.76(2).
¢ Gudjonsson, G. The psychology of interrogations and confessions: a handbook.

(Oxford: Wiley Blackwell, 2002) [ISBN 9780470844618], Chapter 8 ‘The
psychology of false confession: research and theoretical issues’ (available on the
VLE). (You would not be expected to refer to this in detail in the examination,
but you may find it interesting background in considering why even voluntary
confessions may not be true.)
4.1.1 Defining a confession

A confession includes any statement wholly or partly adverse to the person who
made it, whether made to a person in authority or not, and whether made in words
or otherwise. It makes no difference to whom a confession has been made; the same
rules of admissibility apply. A striking illustration is the trial of David Henton in 2008
in which the prosecution was permitted to adduce secretly taped recordings of the
accused allegedly confessing the crime to his cats (see www.guardian.co.uk/uk/2008/
mar/14/murder.cats).
You should note the partial definition in s.82(1) of PACE 1984 and make sure that you
can explain the evidential significance of a ‘mixed’ statement.
Activity 4.1
Give examples of:
a. a wholly exculpatory statement
b. a mixed statement
c. a wholly inculpatory statement.
4.1.2 Using a confession

Section 76 provides that a confession made by an accused person may be given in
evidence against them. The basic rule is that what one defendant says outside court is
evidence against the speaker only, and not against any co-defendant whom they also
mention (Gunewardene [1951] 2 KB 600).
However, it does not follow that parts of a confession incriminating a co-defendant

will be ‘edited out’ at trial. (We will not consider this until we look at hearsay, but you
should be aware that the hearsay provisions of the Criminal Justice Act 2003 make
allowances for the prosecution, in certain limited circumstances, adduce in evidence
of a third party’s confession if it implicates the defendant: Y [2008] EWCA Crim 10.)
All a co-defendant is entitled to is a direction from the judge in summing up that the
out-of-court confession is evidence only against its maker (Lobban v The Queen (1995) 2
Cr App R 573).
What a defendant says about another when they give evidence at the trial in their
own defence is evidence against the co-defendant (Rudd (1948) 32 Cr App R 138).
Where a defendant’s confession has been excluded under s.76(2) or s.78(1), it is no
longer available to the prosecution. Nonetheless, there are circumstances in which
an improperly obtained confession will be available to a co-defendant. By s.76A(1),
a confession made by one defendant may be given in evidence for a co-defendant,
provided it is not excluded by further provisions of s.76A.
At common law, there is nothing to prevent a conviction on confession evidence

alone. The same result would appear to follow under PACE 1984.
4.1.3 Excluding a confession under s.76

Read ss.76 and 76A of PACE 1984. You should note that the effect of these provisions is
that rules relating to the admissibility of confessions are the same for the prosecution
and defence, except that a co-defendant has only the civil standard of proof in respect
of the matters referred to in s.76A(2).
A confession may be excluded under s.76(2)(a) or (b). Note that if the defence relies
on either of these provisions, the burden is on the prosecution to show beyond
reasonable doubt that the confession was not obtained in the circumstances set out in
the part of the subsection relied on.
The effect of s.76(2) is that evidence of a confession shall not be given if it was, or may
have been, obtained by oppression (s.76(2)(a)), or if it was, or may have been, obtained
‘in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made by
[the defendant] in consequence thereof’ (s.76(2)(b)). Section 76 should always be the
defence counsel’s first line of argument, because once the issue is raised under that
section the burden is on the prosecution to prove beyond reasonable doubt that
the confession was not obtained in such a way. If the prosecution fails to satisfy this
burden, the judge must exclude the confession; there is no discretion in the matter.
Section 78 (see Section 4.2 below) can also be used to exclude a confession as it can be
used to exclude any evidence on which the prosecution proposes to rely. But with s.78,
the power to exclude is only discretionary; under s.76 it is mandatory (see Section 4.2).
Do not rely on oppression in the absence of circumstances that warrant it. There is a
partial definition in s.76(8), and a useful discussion of the meaning of oppression can
be found in Fulling [1986] QB 426. For an example of verbal oppression, see Paris (1993)
97 Cr App R 99.
Section 76(2)(b) requires particularly careful reading. Under this provision, a
confession can be excluded on the basis that it was, or may have been, obtained
‘in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made
(by the defendant) in consequence thereof’. So the test that has to be applied is a
hypothetical one: might what was said or done have been likely in the circumstances
to make any confession by that defendant unreliable? If yes, the confession must
be excluded ‘notwithstanding that it may be true’. McGovern (1991) 92 Cr App R 228,
Crampton (1991) 92 Cr App R 369 at 372 and Blackburn [2005] EWCA Crim 1349 all
illustrate the importance of this last point.
For either subs.(2)(a) or (b) to apply, it must be shown that the matters complained of
did, in fact, cause the confession to be made. See Goldenberg (1989) 88 Cr App R 285 on
external, as opposed to internal, factors and compare Walker [1998] Crim LR 211. If the
defence is relying on s.76(2)(b), once it has been shown that an external factor may
have caused the confession to be made, the personal circumstances of the defendant
can then be taken into account to determine whether that factor was likely to render
unreliable any confession that the defendant might make in consequence of it
(McGovern (1991) 92 Cr App R 228).
Delaney (1988) 88 Cr App R provides a useful illustration of the relevance of a

defendant’s personal characteristics to the application of s.76(2).
4.1.4 Subsequently discovered facts

Read ss.76(5) and 75(6) of PACE 1984 and Lam Chi-Ming v The Queen [1991] 2 AC 212.
Activities 4.2–4.4
4.2 What do you think the rationale is for excluding a confession under s.76(2)
where it appears that the confession is likely to be true?
4.3 Where one defendant’s confession has been ruled inadmissible, to what extent
can it be referred to by a co-defendant?
4.4 Steve and Toby are jointly charged with burglary of a valuable collection of
antique silver belonging to Ursula. They intend to plead not guilty. Steve was the
first to be arrested by the police. Vernon, a senior police officer, refused Steve’s
request for a solicitor on the ground that it would hinder recovery of the silver.
He then forced Steve to remain standing while he interviewed him for five hours
without a break. Finally, Steve said: ‘All right. I admit I was involved. But it was
only because Toby threatened to kill me if I didn’t help him.’
How can the defence make use of the refusal of legal advice?
1. Why are confessions seen to be persuasive evidence against a defendant?
2. Why might someone confess to a crime they have not committed?
3. How well protected are defendants from the risk of false confession?
4. What constitutes oppression under s.76(2)(a)?
5. How does s.76(2) allocate the burden of proof?
6. How can the personal circumstances of a defendant be taken into account under
s.76(2)(b)?

confession by another defendant that has been obtained by improper means.
4.2 Section 78(1) of PACE 1984
Core texts
¢ Choo, Chapter 7 ‘Investigatory impropriety: Violations of the European
Convention on Human Rights and undercover police operations’, Section 1 ‘The
exclusion of improperly obtained evidence’.
¢ Durston, Chapter 2 ‘Judicial discretion’, Sections 2 ‘Judicial discretion in modern

England’ to 4 ‘The advent of section 78 of the PCEA 1984’.
Essential reading
¢ Ashworth and Redmayne, Chapter 11 ‘The trial’, Section 11.3 ‘The exclusion of
unfairly and illegally obtained evidence’ (available on the VLE).
¢ Ormerod, D. ‘ECHR and exclusion of evidence: trial remedies for Article 8

breaches’ (2003) Crim LR 61 (available in Westlaw via the Online Library).
Section 78(1) of PACE 1984 provides for the exclusion of evidence on which the
prosecution proposes to rely where its admission would have such an adverse effect
on the fairness of the proceedings that it ought to be excluded. Section 78(1) would
not be the first choice for the exclusion of a confession because of the burden placed
on the prosecution by s.76(2) and the fact that s.78(1) is discretionary. However, s.78(1)
has frequently been relied on to exclude a confession. It may be particularly helpful
if the defence wants to exclude a confession for unreliability but cannot point to
anything said or done by someone other than the defendant so as to trigger s.76(2)
(b). The scope of this provision has been the subject of judicial disagreement but it is
probably wide enough to allow even for the exclusion of reliable evidence where it has
been improperly obtained (see Section 4.2.4).
Further reading
¢ Cases: Samuel [1988] QB 615; Mason [1987] 3 All ER 481; Absolam (1988) 88 Cr App R
332; Keenan [1990] 2 QB 54; Walsh (1990) 91 Cr App R 161; Bailey [1993] 3 All ER 513;
Alladice (1988) 87 Cr App R 380; Beycan [1990] Crim LR 185; Khan (Sultan) v UK [2000]
Crim LR 684, Khan v UK (2001) 31 EHRR 45, Khan [2013] EWCA Crim 2230; P [2002] 1
AC 146; A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221.
It is a good idea to read as many of these cases in full as you can. This will give
you a good feel for the application of s.78 in different factual scenarios.
¢ Ormerod, D. and D. Birch ‘The evolution of the discretionary exclusion of

evidence’ (2004) Crim LR 767.
4.2.1 The breadth of the discretion

The Court of Appeal has given judges a very free hand in their operation of s.78(1).
In Samuel [1988] QB 615 the Court of Appeal said it was undesirable to attempt any
general guidance as to the way in which the discretion should be exercised because
circumstances vary infinitely. A judge’s exercise of discretion under this provision can
be faulted only on the basis of ‘Wednesbury unreasonableness’ (Christou [1992] 1 QB
979, 989; McEvoy [1997] Crim LR 887).
4.2.2 Breaches of the Codes of Practice

A breach of one of the Codes of Practice may help to get evidence excluded under
s.78(1), but such a breach will not lead to automatic exclusion. See Absolam (1988) 88
Cr App R 332 and Keenan [1990] 2 QB 54. A breach generally needs to be ‘significant and
substantial’ to warrant exclusion of evidence.
Where evidence has been obtained by a trick, s.78(1) has sometimes, but not always,
been successfully used. See Bailey [1993] 3 All ER 513 and Mason [1987] 3 All ER 481.
4.2.3 Breaches of Article 8 of the ECHR

The use of intrusive surveillance devices has sometimes led to submissions based
on s.78(1). You should note the application of Article 8 of the ECHR (concerning the
right to respect for private and family life). See Khan (Sultan) v UK [2000] Crim LR 684,
Khan v UK (2001) 31 EHRR 45, P [2002] 1 AC 146 and A v Secretary of State for the Home
Department (No 2) [2006] 2 AC 221. Note that breach of Article 8 does not necessarily
entail breach of the right to a fair trial under Article 6. For a recent example, see Khan
[2013] EWCA Crim 2230.
For criticisms of the courts’ reluctance to exclude evidence obtained in breach of the
right to privacy, see Ormerod, D. ‘ECHR and exclusion of evidence: trial remedies for
Article 8 breaches’ (2003) Crim LR 61.
4.2.4 The rationale for exclusion under s.78(1)

You should try to develop a theory about the rationale of s.78(1). The extracts from
Ashworth and Redmayne (in the Essential reading) and Ormerod and Birch (in the
Further reading) will be helpful to you in this regard. Your development of such a
theory will be useful for problem questions as well as essays. It will also be helpful
to consider whether there have been changes over time as to which rationale(s) are
persuasive.
Is the exercise of s.78 discretion confined to cases where impropriety has affected the
reliability of the evidence? Or can it be used to support ‘process values’, even where
the reliability of the evidence is unaffected? Several speeches in Looseley (see Section
4.3 on entrapment below) suggest that members of the House of Lords interpreted
the s.78 discretion sufficiently widely to permit exclusion of evidence on the basis of
unfairness even where the way in which the evidence was obtained did not affect its
reliability. Lord Nicholls, relying on Smurthwaite, said that the section was not limited
strictly to procedural fairness. Lord Hoffmann, with whom Lord Hutton agreed on this
point, observed that an application to exclude evidence under s.78 may in substance
be a belated application for a stay of proceedings. If so, it should be treated as such
and should be decided according to the principles appropriate to the grant of a stay.
But, for s.78 to be used in this way at all, it must be able to go beyond considerations
of reliability alone, and take into account concerns such as the moral legitimacy of the
verdict.
Note, however, that even if s.78 is in principle available to protect fairness on this wide
basis, the effect of any impropriety on the reliability of the evidence thereby obtained
is likely to remain an important consideration.
Finally, you should note that the effect of s.82(3) of PACE 1984 is to retain the common
law discretion to exclude prosecution evidence on the ground that its probative
value is outweighed by its likely prejudicial effect, recognised in Sang [1980] AC 402.
In Sat-Bhambra (1989) 88 Cr App R 55, the Court of Appeal held that neither s.76(2) nor
s.78(1) was available where the prosecution evidence had already been given, but that
the common law discretion remained available, with the result that a jury could be
instructed to ignore the item of prosecution evidence to which it was applied.
1. What rationales for excluding unlawfully obtained evidence do Ashworth and
Redmayne identify?
2. What do you think is the best rationale for excluding illegally obtained
evidence?
3. What was the rationale for the decision in A v Secretary of State for the Home
Department (No 2) [2006] 2 AC 221?
4. What rationale do you think the English courts generally use?
5. How easy is it to predict if evidence will be excluded under s.78? Please use case
law in support of your answers.

u describe the common law discretion to exclude prosecution evidence.
4.3 Entrapment
Core texts
¢ Choo, Chapter 7 ‘Investigatory impropriety: violations of the European
Convention on Human Rights and undercover police operations’, Section 2
‘Evidence obtained in undercover police operations’.
¢ Durston, Chapter 2 ‘Judicial discretion’, Sections ‘Section 78 and entrapment’

and ‘Entrapment and abuse of process’.
Essential reading
¢ Case: Looseley [2001] 4 All ER 897.
In entrapment cases the grant of a stay of proceedings should normally be preferred

to exclusion of evidence under s.78. A stay is more appropriate as a matter of principle
because a prosecution founded on entrapment would be an abuse of the court’s
process.
An important case on entrapment is the decision of the House of Lords in Looseley. You
must read this judgment in full for yourself and note the following points. Where an
application is made to stay proceedings on the basis of entrapment, it is not possible
to isolate any single factor or devise a formula that will always produce the correct
answer; however, it is possible to identify a cluster of relevant factors, as follows:
u Did the undercover officer behave like an ordinary member of the public, or did
they offer extraordinary inducements?
u In the case of some regulatory offences, the law could not be effective unless
enforcement officers were able to make random tests. But normally it will not be
proper for police to provide people not suspected of being engaged in any criminal
activity with the opportunity to commit crimes.
u The justification of entrapment will depend partly on the nature of the offence
being investigated. The fact that the offence is a serious one is not, by itself,
sufficient. But where it is difficult to obtain evidence because of the nature of the
offence, proactive methods are likely to be justified. Examples are: consensual
offences such as dealing in drugs; offences with no immediate victim such as
bribery; and offences that victims are reluctant to report.
u Whether there has been entrapment cannot be determined simply by asking

whether the defendant was given the opportunity to commit the offence of
which they freely availed themselves. Nor is it possible to determine the existence
of entrapment by a mechanical application of a distinction between ‘active’
and ‘passive’ conduct on the part of the undercover officer. But the greater the
inducement held out by the police, and the more forceful or persistent their
overtures, the more likely it is that a court will find entrapment.
In the opinion of three of the Law Lords, the position adopted by the European Court
of Human Rights in Teixeira de Castro v Portugal did not diverge from the position in
English law.
Further reading
¢ Cases: Teixeira de Castro v Portugal (1998) 28 EHRR 101; Christou [1992] QB 979,
(1992) 95 Cr App R 264, CA; DPP v Marshall [1988] 3 All ER 683, DC; Bryce (1992) 95
Cr App R 320; A-G’s Reference (No 3 of 2000) [2001] 1 WLR 2060.
1. When will the courts find that the behaviour of the police is unacceptable and
that the appropriate remedy is to stay the proceedings as an abuse of process
instead of excluding the evidence under s.78?
2. Read Looseley carefully. What factors will be relevant to a court’s decision as to

whether the proceedings should be stayed as an abuse of process? How clear/
easy to apply are they?
3. What is meant by ‘state-created crime’? What is the legal concept underlying

oft-repeated expressions such as ‘lure’, ‘incite’ or ‘instigate’? What is the
distinction, in terms of of relevance in the commission of a crime, which these
phrases are seeking to draw? If an undercover police officer asks a known drug
supplier for drugs, are they ‘luring’ the unsuspecting supplier into committing a
crime? If not, why not? What does ‘lure’ mean in this context? By what criteria is
a trial judge to distinguish the acceptable from the unacceptable?

Having completed of this chapter, and the Essential reading and activities, you
should be able to:
confession by another defendant that has been obtained by improper means
u describe the common law discretion to exclude prosecution evidence
u identify and explain entrapment and the appropriate remedy for it.
Quick quiz
Question 1
Confessions are in principle admissible as exceptions to which of the following?
a. The right to silence.
b. The rule against hearsay.
c. The right to a fair trial.
Question 2
Where a defendant represents that their confession was obtained by oppression,
which of the following ensues?
a. The defence will need to satisfy the court on a balance of probabilities that the
confession was obtained by oppression for it to be excluded.
b. The confession will only be adduced in evidence if the prosecution proves beyond
reasonable doubt that the confession was not obtained by oppression.
c. The confession will be excluded unless the prosecution proves on a balance of

probabilities that the confession was not obtained by oppression.
Question 3
Where a defendant represents that their confession was obtained in consequence
of anything said or done which was likely in the circumstances existing at the time
to render unreliable any confession which might be made by them in consequence
thereof, the prosecution may succeed in adducing the confession if it does which of
the following?
a. Proves that the confession is true.
b. Proves that the confession is reliable.
c. Proves that the confession was not made in consequence of anything said or done
which was likely to render it unreliable.
Question 4
The most appropriate remedy for entrapment is which of the following?
a. Exclusion of the evidence obtained by entrapment under s.78 of PACE 1984.
b. Exclusion of the evidence under s.76 of PACE 1984.
c. For the proceedings to be stayed as an abuse of process.
Question 5
Which statutory provision deals with the admissibility of evidence obtained as a result
of a confession that is subsequently excluded under s.76(2) of PACE 1984?
a. Section 76(5) of PACE 1984.
b. Section 78(3) of PACE 1984.
c. Section 58 of PACE 1984.

Freda goes to the police and accuses Joe, aged 40, of raping her in a field. The police
arrest Joe. Joe says he has not had sex with anyone for years and wants to see a
lawyer before answering any questions. The police are aware that Joe is a drug
addict (although he does not have any previous convictions) and that he will be in
a hurry to get out of the police station to satisfy his drug habit. PC Fixit lies to Joe
by telling him that it will be 18 hours before a lawyer arrives. PC Fixit questions Joe
constantly for eight hours. PC Fixit tells Joe he is an idiot because the whole incident
has been captured on CCTV (a lie) and he is only adding to his sentence by refusing
to confess. During the eighth hour of questioning Joe confesses to raping Freda
and tells the police they will find the condom discarded under some yew trees in
the woods. The police search the wood and find a condom in the exact place Joe
described. Forensic scientists are unable to find any material on the condom that
would identify its users. Joe is now on trial for rape. He claims that the confession
was false and that he was bullied into making it. Discuss any evidential issues arising.
Add critical comment where you think the law is unsatisfactory.

This question provides you with the opportunity to demonstrate your knowledge and
understanding of ss.76 and 78 of PACE 1984 and the relevant case law.
You might start by discussing whether the confession could be excluded under
s.76(2)(a). You will need to demonstrate your understanding of the burden of proof in
relation to this section. You could mention examples of cases in which oppression has
been found and compare the facts and circumstances of those cases with the facts in
the problem scenario. If you are confident that the circumstances in Joe’s case do not
amount to oppression, you should not spend much time discussing the case law under
s.76(2)(a), but make sure it is clear to the examiners that this is your reason for not
going into detail, with reference to your grounds for being confident.
You should look at s.76(2)(b) separately. Once again, demonstrate your understanding
of the burden of proof in relation to this section. Make sure you identify the thing said
or done and the existing circumstances that might render the confession unreliable.
If you think that the confession is more likely to be excluded under s.76(2)(b) than
s.76(2)(a) then it merits a more detailed discussion. Draw analogies between the cases
in which confessions have been excluded under this statutory provision and the facts
and circumstances in Joe’s case. Identify relevant similarities and differences. For
example, the lie told in Mason was to the defendant’s lawyer, and in this case it was to
the defendant. Does that make any difference to whether it will be excluded? Is the
fact that Joe was effectively denied access to legal advice relevant to your answer?
Even if you think it likely that the confession will be excluded under s.76(2)(b) (and
you might not) it is worth demonstrating that you know the confession could also be
excluded under s.78 but that this will be at the court’s discretion. You might have time
to mention the factors that the court is likely to take into account in deciding whether
to exercise its discretion.
You need to address the admissibility of the evidence of the finding of the condom in
the event that the confession is excluded.
This question invites you to make critical comment where you think the law is
unsatisfactory. You should save your comments until the end. Try to write a paragraph
of critical comments. Examples might be (1) the difficulty of predicting whether the
confession will be excluded (make sure you are clear about the sources of difficulty/
ambiguity) or (2) that you disagree with the likely outcome (make sure you are clear
about your reasons for disagreeing).
Notes
5 The right to silence and adverse inferences under
the Criminal Justice and Public Order Act 1994
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.1 Section 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.2 Sections 36 and 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.3 Section 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.4 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Introduction
The right to silence is closely bound up with the presumption of innocence and the
privilege against self-incrimination. Both the presumption of innocence and the
privilege against self-incrimination play an important role in protecting a citizen’s
liberty from state interference. In D v Director of the Serious Fraud Office ex p Smith [1993]
AC 1 Lord Mustill explored the variety of immunities bound up in the right to silence.
Lord Mustill described the foundation of the privilege not to be compelled to answer
questions put by persons in authority as ‘the common view that one person should so
far as possible be entitled to tell another person to mind his own business’.
The evidential significance of silence

Prior to the Criminal Justice and Public Order Act 1994 (CJPOA 1994), no evidential
significance could be attached to an accused’s exercise of the right to silence during
the police investigation (Gilbert (1977) 66 Cr App R 237). If and where a jury did learn
of an accused’s silence in response to police questions, they were reminded of the
accused’s right to remain silent and were warned not to draw any adverse inferences
from it. The Criminal Evidence Act 1898 provided that the failure of the accused to
testify was not to be made the subject of any comment by the prosecution. Comment
by the judge was permissible but the scope for it was limited. It had always to be
accompanied by a reminder that the accused was not bound to give evidence and
that, while the jury had been deprived of the opportunity of hearing the accused’s
story tested in cross-examination, they were not to assume that the accused was guilty
because the accused had not gone into the witness box. Stronger judicial comment
was permitted where the defence case involved the assertion of facts which were at
variance with the prosecution evidence, or additional to it and exculpatory, and which,
if true, would have been within the accused’s own knowledge (Martinez-Tobon [1994] 1
WLR 388). The scope of the circumstances and extent to which a judge could comment
on an accused’s failure to testify were unclear, however.
The CJPOA 1994 dramatically and controversially reformed the law. Its provisions have
generated a large amount of appellate case law and several judgments by the European
Court of Human Rights (ECtHR). The Act provides that adverse inferences may, under
certain circumstances, be drawn by the jury (or judge in summary trials) from a suspect’s
silence in the face of police questioning (outlined in ss.34, 36 and 37). Section 35 details
the circumstances in which adverse inferences may be drawn from an accused’s failure
to give evidence at their trial. Section 38(3) provides that a person shall not have a case
to answer found against them, or be convicted of an offence, solely on an inference
from silence drawn under the aforementioned provisions. Section 58 of PACE 1984 was
amended with respect to the 1994 legislation so that no adverse inference could be
drawn under the provisions unless the accused has first had an opportunity to consult a
legal adviser.
In Bowden [1999] 2 Cr App R 176, CA, Lord Bingham CJ observed at [181] that, even
though proper effect must be given to the adverse inference provisions, they should
not be construed more widely than the statutory language requires as they ‘restrict
rights recognised at common law as appropriate to protect defendants against the risk
of injustice’.
The provisions governing the inferences that may be drawn from an accused’s silence
have been very controversial because of the importance attached to the right to silence.
Core texts
¢ Choo, Chapter 5 ‘The right to silence and the privilege against self-incrimination’
and Chapter 13 ‘Witnesses’, Sections 1 ‘Competence’ and 2 ‘Compellability’.
¢ Durston, Chapter 7 ‘Confession evidence and related matters’, Section 10

‘Adverse inference directions’ and Chapter 9 ‘The course of the evidence:
examination in chief’, Sections ‘Comment on a failure to testify’ and ‘Comment
on a criminal defendant not testifying’.
Evidence 5 The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 page 53
Essential reading
¢ Jennings, A. ‘Silence and safety: the impact of human rights law’ (2000) 11 Crim
LR 879 (available in Westlaw via the Online Library).
¢ Quirk, H. ‘The right of silence in England and Wales: Sacred cow, sacrificial
lamb or Trojan horse?’ in Jackson, J. (ed.) Obstacles to fairness in criminal justice
proceedings (Oxford: Hart Publishing, 2018) [ISBN 9781782258360] (available on
the VLE).
¢ Munday, Chapter 11 ‘Drawing adverse inferences from a defendant’s omissions,

lies, or false alibis’, Section I ‘Inferences drawn from the defendant’s silence’
¢ Redmayne, M. ‘English warnings’ (2008) 30 Cardozo L Rev 1047 (available in

HeinOnline and Academic Search Complete).
¢ Sections 34–38 of the CJPOA 1994.
¢ R v Green [2019] EWCA Crim 411.
Learning outcomes
u apply ss.34–38 of the CJPOA 1994 to a problem scenario
u spot any errors in a direction to the jury on drawing adverse inferences under
ss.34–38
u critically evaluate the law in this area.
5.1 Section 34
Core texts
¢ Choo, Chapter 5 ‘The right to silence and the privilege against self-incrimination’,
Section 1.3.1 ‘Section 34’.

‘Adverse inference directions’.
Essential reading
¢ Crown Court Compendium (2018) Part I: Section 17-1 ‘Matters not
mentioned when questioned or charged’ www.judiciary.uk/publications/
crown-court-compendium-published-december-2018/
¢ Cases: Argent (1997) 2 Cr App R 27.
The object of s.34 is to deter late fabrication of defences and to encourage early
disclosure of genuine defences (see Crown Court Compendium, Section 17-1). The
conditions in s.34 were referred to by the Court of Appeal in Argent (1997) 2 Cr App
R 27. You should note what is said about interpreting reasonableness in light of the
particular circumstances of each defendant. See also B (MT) [2000] Crim LR 181.
There is a useful survey of the law on silence under police questioning, both before
and after s.34, in Webber [2004] 1 WLR 404, [16]–[37]. In Wheeler [2008] EWCA Crim 688
the Court of Appeal held that a trial judge had been wrong to direct the jury that they
could draw inferences under s.34 in relation to facts that were not in dispute at trial.
In R v Green [2019] EWCA Crim 411 the Court of Appeal considered whether a judge
was right to give an adverse inference direction under s.34 of the Criminal Justice and
Public Order Act 1994 and whether the terms of the direction were adequate. The
Court of Appeal, quashing a conviction as unsafe due to a defective adverse inference
direction, made several observations regarding the operation of s.34 of the Criminal
Justice and Public Order Act 1994.
The effect of legal advice on silence was considered in Condron [1997] 1 Cr App R 185,
which should be read in conjunction with the decision of the ECtHR in Condron v UK
[2000] Crim LR 679. Note s.34(2A) which was inserted in the section to meet criticisms
made by the European Court. In Betts and Hall [2001] 2 Cr App R 257, the Court of Appeal
said that, where silence at an interview is said to be on legal advice, the judge must
make it plain to the jury that they can draw inferences only if they are sure that the
failure to mention facts subsequently relied on at trial was because the defendant had
not at that earlier stage any explanation to offer, or none that they believed would
stand up to questioning or investigation, so that the solicitor’s advice was no more
than a convenient shield behind which to hide. But see also Howell [2003] EWCA Crim
1 and Knight [2003] EWCA Crim 1977. In Hoare [2005] 1 WLR 1804 an attempt was made
to close the gap between Betts and Hall and Howell. The Court of Appeal said that the
question for the jury in the end is whether, regardless of advice given and accepted,
an accused has remained silent not because of that advice but because they had no,
(or no satisfactory), explanation to give. For a reference to circumstances in which a
suspect might have good reason to rely on a solicitor’s advice to remain silent, despite
having an answer to allegations against them, see Essa [2009] EWCA Crim 43.
You need to be aware that the inference that the defence submitted at trial is one of
recent fabrication is not the only permissible adverse inference under s.34 (Beckles
[1999] Crim LR 148). For examples of other inferences, see Petkar [2004] 1 Cr App R 270
and Milford [2001] Crim LR 330.
Where a defendant exercises their right to silence in the police station interview but
the circumstances are such that s.34 is of no application, a counterweight direction
should be given in relation to the accused’s silence. In McGarry [1999] 1 WLR 1500 it
was noted that ‘a jury, without such guidance, may treat silence as probative of guilt’.
It has, however, been suggested that the McGarry direction may do harm by drawing
attention to the accused’s failure to answer questions, so that the failure to give the
direction may be a benefit (Thomas [2002] EWCA Crim 2861 and Jama [2008] EWCA
Crim 2861).
Regarding the importance of the direction to the jury, see the article by Jennings and
the case of Bristow and Jones [2002] EWCA Crim 1571. In Bristow and Jones the trial judge
had omitted to direct the jury that silence alone could not prove guilt. Although the
Court of Appeal felt that it was ‘unlikely’ that the accused’s silence played a significant
role in the jury’s decision to convict, it felt compelled by the ECtHR’s decision in
Condron v UK [2002] 31 EHRR 1 to quash the conviction on the ground that ‘the jury may
have convicted on a basis which did not give effect to the qualified protection to the
right of silence provided by the law’.
Further reading
¢ Birch, D.J. ‘Suffering in silence: a cost-benefit analysis of s.34 of the Criminal
Justice and Public Order Act 1994’ (1999) Crim LR 769.
¢ Cases: Condron v UK [2000] 31 EHRR 1; Betts and Hall [2001] EWCA Crim 224; Howell
[2003] EWCA Crim 1; Knight [2003] EWCA Crim 1977; Webber [2004] 1 WLR 404;
Beckles [1999] Crim LR 148; Petkar [2004] 1 Cr App R 270; Milford [2001] Crim LR
330; Bresa [2005] EWCA Crim 1414; Averill v UK [2001] 31 EHRR 839; Argent [1997] 2
Cr App R 27 at 32–33; Bristow and Jones [2002] EWCA Crim 1571.
Activity 5.1
a. What fact must an accused fail to mention when questioned for adverse
inferences to be drawn against them under s.34?
b. Must a defendant give evidence at trial to trigger the application of s.34?
No feedback provided for (b).

According to Lord Bingham in Argent [1997] 2 Cr App R 27, how should the court
interpret the phrase ‘in the circumstances’ in s.34(1)? What examples did Lord
Bingham provide of the sort of matters that should be taken into account when
deciding what would have been reasonable to expect the accused to have
mentioned in the circumstances?
5.2 Sections 36 and 37
Core text
Sections 1.3.2 ‘Section 36’ and 1.3.3 ‘Section 37’.
Essential reading
¢ Owusu-Bempah, A. ‘Silence in suspicious circumstances’ (2014) 2 Crim LR 126
(available in Westlaw via the Online Library).
¢ Crown Court Compendium (2018) Part I: Section 17-2: ‘No account

given for objects, substances or marks CJPOA s.36 or presence
at a particular place CJPOA s.37’ www.judiciary.uk/publications/
Section 36 permits inferences to be drawn from an arrested person’s failure to account

for suspicious objects, substances and marks. Section 37 permits inferences to be
drawn from an arrested person’s failure to account for their suspicious presence at a
particular place around the time that an offence was committed.
In comparison to s.34, ss.36 and 37 have generated very little case law. They have only
recently begun to attract academic attention.
Further reading
¢ Marks, A. ‘Evidence of drug traces: relevance, reliability and the right to silence’
(2013) Crim LR 810.
¢ Case: Compton [2002] EWCA Crim 2835.
Activity 5.2
Summarise the criticisms made of s.36 in the reading material from Owusu-Bempah
and Marks.
5.3 Section 35
Core texts
¢ Choo, Chapter 13 ‘Witnesses’, Section 2 ‘Compellability’ to ‘Testifying on behalf of
a co-accused’.

‘Adverse inference directions’.
Essential reading
¢ Cases: Murray v DPP [1994] 1 WLR 1 (HL); Cowan [1996] 1 Cr App R 1; Birchall [1999]
Crim LR 311.
If a defendant fails to give evidence in their own defence (or, when giving evidence,
refuses without good cause to answer any question) the court or jury, in determining
whether they are guilty of the offence charged, may draw such inferences from
that failure as appear proper (s.35 of the CJPOA 1994).You should read Lord Mustill’s
explanation of the rationale for drawing inferences under this section in Murray v DPP
[1994] 1 WLR 1 (HL).
When reading s.35 you should note what conditions have to be satisfied before
inferences can be drawn. You should also read Cowan [1996] 1 Cr App R 1 carefully
because it sets out the contents of the direction to the jury that must be given when
this provision comes into operation.
Section 35(1)(b) provides that adverse inferences cannot be drawn against the
defendant where it appears to the court that their physical or mental condition
makes it undesirable for them to give evidence. The courts have interpreted this
provision narrowly. In Kavanagh [2005] EWHC 820 (Admin) the Administrative Court
emphasised that for s.35(1)(b) to apply, it is not enough that the defendant should
suffer from some physical or mental condition; the condition must be such as to make
it undesirable for them to give evidence. Kavanagh was followed in Ensor (Max Angus)
[2009] EWCA Crim 2519. In Branchflower [2009] EWCA Crim 1239 the court emphasised
that a defendant’s distress is no reason for failing to call them to testify. A judge is
entitled to take account of the potential significance of the defendant’s evidence; the
less its significance, the less severe the physical or mental condition would have to be
for it to be undesirable for them to give evidence: Tabbakh (2009) 173 JP 201, CA. For
an example of where the court did think it was undesirable for the defendant to give
evidence, see Friend (No 2) [2004] EWCA Crim 2661. For further details, see the article by
Owusu-Bempah in the Further reading.
What is Redmayne’s criticism of the s.35 direction in Noonan [2003] EWCA
Crim 3869?
Further reading
¢ Owusu-Bempah, A. ‘Judging the desirability of a defendant’s evidence: an
unfortunate approach to s.35(1)(b) of the Criminal Justice and Public Order Act
1994’ (2011) 9 Crim LR 690.
¢ Cases: Dalligan [2001] EWCA Crim 1051; Friend (No 2) [2004] EWCA Crim 2661;
Kavanagh [2005] EWHC 820 (Admin); Noonan [2003] EWCA Crim 3869.

By this stage, you should be able to:
u apply s.34 of the CJPOA 1994 to a problem scenario
ss.34–38.
5.4 Critical evaluation
Core text
Sections 1.1 ‘The development of the law’ and 1.3.4 ‘Concluding remarks’.
Essential reading
¢ Jennings, A. ‘Silence and safety: the impact of human rights law’ (2000) 11 Crim
LR 879 (available in Westlaw via the Online Library).
¢ Munday, Chapter 11: ‘Drawing adverse inferences from a defendant’s omissions,

lies, or false alibis’, Section I ‘Inferences drawn from the defendant’s silence’
¢ Owusu-Bempah, A. ‘Silence in suspicious circumstances’ (2014) 2 Crim LR 126

(available in Westlaw via the Online Library).
¢ Redmayne, M. ‘English warnings’ (2008) 30 Cardozo L Rev 1047 (available in

HeinOnline and Academic Search Complete).
You should already be familiar with the presumption of innocence in criminal
proceedings. Before the CJPOA 1994, the presumption was frequently cited in support
of the common law rule against drawing adverse inferences from a defendant’s
silence. See, for example, Lord Justice Devlin’s direction to the jury in the trial of Dr
Bodkin Adams:
The law on this matter reflects the natural thought of England. So great is, and always
has been our horror at the idea that a man might be questioned, forced to speak and
perhaps to condemn himself out of his own mouth that we grant to everyone suspected
or accused of crime at the beginning, at every stage and until the very end the right to
say: ‘Ask me no questions, I shall answer none. Prove your case.’ (Patrick Devlin, Easing the
passing, cited in Munday, para.11.3.)
You should consider the extent to which the presumption of innocence might be
undermined by ss.34–37. Note the provision in s.38(3) in your considerations.
The privilege against self-incrimination is complex and you are only required
to understand it in its most basic sense. According to the privilege against self-
incrimination, a person should not be compelled on pain of punishment to expose
themselves to the risk of self-incrimination. You are not required to study the
various exceptions which permit a penalty to be attached to the failure to provide
information. You are required, however, to consider the overlap between the drawing
of adverse inferences from silence and the privilege against self-incrimination. This
overlap is best explained by Ashworth and Redmayne (listed in the Further reading).
The key paragraph is:
Drawing inferences from silence does not place a suspect under an obligation to speak;
indeed, the words of the new caution begin: ‘you do not have to say anything’. The
Criminal Justice and Public Order Act may put a certain amount of pressure on suspects
to speak, but this is not the same as obliging them to. However, as the Strasbourg court
notes, it is important that the regime of inferences from silence is handled carefully.
To the extent that silence is suspicious, it is appropriate to draw inferences from silence.
But if inferences are drawn too readily, or given too much weight, the scheme of drawing
inferences from silence will change from being one where suspects face the natural
consequences of their suspicious behaviour, to one where the only rational explanation
for inferences is that they are being used to encourage suspects to speak by penalizing
non-cooperation. Once the inferences from silence regime operates in this manner, it
does appear to be in tension with the privilege against self-incrimination.
Redmayne also addresses this issue in his article ‘English warnings’ (listed in the
Essential reading).
You will need to consider the impact of human rights on this area. You should note the
changes that have been made to domestic law in order to comply with the judgments
of the ECtHR on the provisions. The ECtHR has declared that the privilege against
self-incrimination and the right to silence lie at the heart of Article 6 of the European
Convention on Human Rights. However, neither is absolute. See Condron v UK [2000] 31
EHRR 1 and Murray v UK (1996) 22 EHRR 29 (at [47]):
Whether the drawing of adverse inferences from an accused’s silence infringes Article
6 is a matter to be determined in the light of all the circumstances of the case, having
particular regard to the situations where inferences may be drawn, the weight attached
to them by the national courts in their assessment of the evidence and the degree of
compulsion inherent in the situation.
The ECtHR stipulates both that (1) the accused be in a position to provide an
explanation, and that (2) sufficient probative force requires an explanation, as pre-
requisites for the drawing of inferences from silence. As stated in Murray (at [51]):
The question in each particular case is whether the evidence adduced by the prosecution
is sufficiently strong to require an answer. The national court cannot conclude that the
accused is guilty merely because he chooses to remain silent. It is only if the evidence
against the accused ‘calls’ for an explanation which the accused ought to be in a position
to give that a failure to give any explanation ‘may as a matter of common sense allow
the drawing of an inference that there is no explanation and that the accused is guilty’.
Conversely if the case presented by the prosecution had so little evidential value that it
called for no answer, a failure to provide one could not justify an inference of guilt (ibid.).
In sum, it is only common sense inferences which the judge considers proper, in the light
of the evidence against the accused, that can be drawn under the Order.
When studying the operation of ss.34–37 in the case law you should consider the
extent to which the inferences invited accord with the goal of ‘rectitude of decision
making’. Here you could draw on the lessons you learned about the aims of the law of
evidence, and about relevance and the inferential process in Chapter 2. Under what
circumstances is a person’s silence suspicious? When and why should we expect a
person to account for themselves in the face of an accusation? Is there a danger of
juries mistakenly equating silence with guilt? Various safeguards have been provided
in the sections of the CJPOA 1994 to ensure that inferences are drawn only where it is
rational and fair to do so. Under s.34, for example, an adverse inference can only be
drawn from a defendant’s failure to mention a fact subsequently relied upon where it
would be reasonable to expect them to have mentioned it at the time.
You might want to consider the probative value of silence and the adequacy of the
directions in ensuring that the jury attach the appropriate weight to it. Waller J in Bresa
[2005] EWCA Crim 1414 observed:
It is a matter of some anxiety that, even in the simplest and most straightforward of cases,
where a direction is to be given under s.34, it seems to require a direction of such length
and detail that it seems to promote the adverse inference question to a height it does not
merit.
Further reading
¢ Ashworth and Redmayne, Chapter 5: ‘Gathering evidence’, Section 5.6 ‘The
privilege against self-incrimination’ (available on the VLE).
¢ Ashworth, A. ‘Four threats to the presumption of innocence’ (2006) 10(4) IJEP

241.
¢ Ashworth, A. ‘Self-incrimination in European human rights law – a pregnant

pragmatism?’ (2008) 30 Cardozo Law Review 751.

para.140, pp. 88–90 (available on the VLE).
¢ Leng, R. ‘The right to silence in police interrogation: a study of some of the issues
underlying the debate’ (1993) Royal Commission on Criminal Justice, Research
Study No. 10.
(2013) Crim LR 810.
¢ Munday, R. ‘Inferences from silence and European human rights law’ (1996) Crim
LR 370.
Activity 5.3
a. Note differences and similarities between the different provisions in the CJPOA
(the Redmayne article will help you to do this).
b. Are there any cases, or circumstances you can envision in light of your reading
of the academic commentaries and statutory provisions where juries may draw
adverse inferences in the absence of a rational basis? What is Redmayne’s
concern about these instances?
c. Are there circumstances in which adverse inferences are wrongly be drawn from
an accused’s failure to testify?
d. To what extent do you think the law in this area impinges on the privilege
against self-incrimination?
e. To what extent do you think the law in this area undermines the presumption of
innocence?
f. To what extent do you think the law in this area undermines trial fairness?
g. Why might it be wrong to draw inferences from silence in response to an

accusation based on mere speculation or weak evidence?

Having completed this chapter, and the Essential readings and activities, you should
be able to:
u apply ss.34–38 of the CJPOA 1994 to a problem scenario
ss.34–38
u critically evaluate the law in this area.
Quick quiz
Question 1
Jay is on trial for murder. The prosecution has strong evidence against him. Jay does
not give evidence at trial or adduce any evidence in his defence. He did not answer any
of the questions put to him by the police at interview. In this situation which of the
following is correct?
a. The judge may invite the jury to draw adverse inferences from Jay’s silence under
ss.34 and 35 of the CJPOA 1994.
b. The judge may invite the jury to draw adverse inferences from Jay’s silence under
s.35 of the CJPOA 1994, but not under s.34 of the CJPOA 1994.
c. The judge may invite the jury to draw adverse inferences from Jay’s silence under
s.34 of the CJPOA 1994 but not under s.35 of the CJPOA 1994.
Question 2
Which of the following is correct?
a. A defendant can be convicted on the basis of inferences from silence alone.
b. A jury must be sure that the prosecution’s case is so strong that it clearly calls for
an answer before drawing adverse inferences from a defendant’s silence.
c. A jury may not draw adverse inferences from a defendant’s silence where the
defendant has been advised to remain silent by their lawyer.
Question 3
On account of which decision of the ECtHR did the Court of Appeal feel compelled to
quash the conviction in Bristow and Jones [2002] EWCA Crim 1571?
a. Condron v UK [2000] 31 EHRR1.
b. Friend (No 2) [2004] EWCA Crim 2661.
c. Murray v UK [2000] 22 EHRR 3.
Question 4
According to Redmayne (‘English warnings’) which of the range of adverse inferences
that could be drawn under s.34 of the CJPOA 1994 is the most obvious?
a. That the fact relied upon at trial is a fabrication.
b. That the accused is fearful of the police.
c. That the accused dislikes police officers.

Question 5
According to Redmayne (‘English warnings’) what assumption underlies the invitation
to draw adverse inferences under s.35 of the CJPOA 1994?
a. That the guilty have more to lose from testifying than the innocent.
b. That judges will steer juries appropriately.
c. That citizens have a duty to explain themselves when called upon to do so by the
state.

‘Even though proper effect must be given to the adverse inference provisions under
the Criminal Justice and Public Order Act 1994, they should not be construed more
widely than the statutory language requires because they restrict important rights
which are appropriate to protect defendants against the risk of injustice.’ Do you
agree and to what extent has this view been complied with by the national courts?

Your introduction should briefly outline what the adverse inference provisions are and
the nature of the rights at stake.
The first section of your answer should demonstrate your understanding of the
‘important rights’ that are effected by the adverse inference provisions. You will need
to explain the importance of the right to silence and you might also discuss the right
to a fair trial and the privilege against self-incrimination.
In the next section you might discuss the provisions in more detail. You need to
explain the purpose they fulfil. Do you think the provisions achieve the right balance
between these objectives and the protection of the important rights? What scope is
there for tipping the scales too far one way or the other? Might it be that the statutory
provisions themselves are too broad to protect human rights?
The second half of your essay needs to address the case law. Note that the question
asks you about decisions by the national courts. Several decisions by the ECtHR suggest
that the national courts were not taking sufficient action to protect important rights.
You will need to use decisions from both national courts and the ECtHR in support of
your answer.
6 Hazardous witness testimony and judicial warnings
to the jury
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.1 Makanjuola warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 Directions about a defendant’s lies . . . . . . . . . . . . . . . . . . . . 64
6.3 Eyewitness identification testimony . . . . . . . . . . . . . . . . . . . 66
6.4 Pre-trial identification procedures . . . . . . . . . . . . . . . . . . . . 69
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Introduction
Our focus in this chapter is on measures taken in recent years to reduce the risk
of miscarriages of justice from potentially and demonstrably unreliable witness
testimony. We will examine three discrete topics:
u discretionary care warnings, which can conveniently be called ‘Makanjuola

warnings’
u directions about a defendant’s lies, often referred to as ‘Lucas directions’, although

the law has moved on since Lucas
u eyewitness testimony concerning identification of the defendant as the person

who committed the alleged offence, and the important cases of Turnbull, Forbes
and Gojra (Ranjit).
In Luttrell [2004] EWCA Crim 1344 (a case we will examine in greater detail when we
look at expert evidence in Chapter 10) the Court of Appeal noted (at [42]) that the
general principle derived from the cases listed above is:
that a ‘special warning’ is necessary if experience, research or common sense has

indicated there is a difficulty with a certain type of evidence that requires giving the
jury a warning of its dangers and the need for caution, tailored to meet the needs of the
case. This will often be the case where jurors may be unaware of the difficulty, or may
insufficiently understand it.
Core texts
¢ Choo, Chapter 13 ‘Witnesses’, Sections 3.4 ‘Criminal Justice and Public Order
Act 1994 section 32(1)’ and 3.5 ‘Evidence of accused’s lies’, and Chapter 6
‘Identification evidence’, Sections 1 ‘Mistaken identifications’ to 3.2 ‘Exclusion for
breaches of Code D’ and 5 ‘Summary and conclusion’.
¢ Durston, Chapter 12 ‘Corroboration and identification evidence’.
Essential reading
¢ Code of Practice for the Identification of Persons by Police Officers (Code D) of
the Police and Criminal Evidence Act 1984 (PACE 1984), paras 3.1, 3.1A, 3.2 and 3.3
and the annexes A–E.
Learning outcomes
u describe what is meant by Makanjuola warnings and explain how they differ
from the directions formerly given to the jury on corroboration
u give an account of the decision in Lucas and show how the law was restated in
Burge and Pegg
u describe the circumstances in which a Lucas/Burge warning is not required in
relation to a defendant’s evidence
u explain when the Turnbull guidelines apply to evidence that points to the
defendant as the person who committed an offence, and when they do not apply
u distinguish between evidence of identification and evidence of description
u explain when Turnbull requires a judge to withdraw a case from the jury
u explain (fully) what a Turnbull direction requires a judge to do
u describe the main procedures for identification set out in Code D of PACE 1984
u describe the circumstances in which Code D does and does not apply
u describe the circumstances in which a breach of Code D will result in the
exclusion of the identification evidence.
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 63
6.1 Makanjuola warnings
Core texts
¢ Choo, Chapter 13 ‘Witnesses’, Sections 3 ‘Corroboration, witness unreliability,
and judicial warnings’ to 3.4 ‘Criminal Justice and Public Order Act 1994, section
32(1)’.
¢ Durston, Chapter 12 ‘Corroboration and identification evidence’, Section 1

‘Corroboration’.
Essential reading
¢ Crown Court Compendium (2018) Part 1, Section 10-2 ‘Corroboration
and the special need for caution’ www.judiciary.uk/publications/
¢ R v Mann [2019] EWCA Crim 1200.
Traditionally, English law placed considerable emphasis on the requirement for

corroborative evidence. Corroborative evidence is independent and supportive
evidence. The common law evolved certain categories of case where, by reason either
of the nature of the allegation, or of the witness falling into a particular category,
corroboration was said to be required. The corroboration requirement applied to the
evidence of a complainant in any allegation of a sexual offence, to the evidence of an
accomplice of the defendant when called by the prosecution, and to the evidence of
children. Reference to a ‘requirement’ for corroboration was misleading as a judge
was only obliged to warn a jury that it would be dangerous to convict on evidence
coming from one of these sources if uncorroborated; the judge was entitled to go on
to tell the jury that they could convict on such evidence if, having paid due attention
to the warning, they were convinced about the guilt of the accused. The old law of
corroboration was – for virtually all practical purposes – abolished by s.34(2) of the
Criminal Justice Act 1988 and s.32 of the Criminal Justice and Public Order Act 1994. The
criterion of ‘supporting evidence’ today is also somewhat more relaxed than the old
requirement of ‘independent’ evidence.
In place of the rigidity and complexity of the old law, the Court of Appeal in Makanjuola
[1995] 3 All ER 730 emphasised that trial judges now have a wide discretion to give
warnings (or directions). While they are no longer required to give warnings according
to the previous fixed categories of types of witness, they may exercise their discretion
far more widely, in any case where the circumstances indicate that the jury should
exercise special caution before acting upon the unsupported testimony of any
witness. However, it was also emphasised in Makanjuola that there will need to be
an evidential basis, going beyond mere suggestions by cross-examining counsel, for
considering that the evidence of the witness may be so potentially unreliable as to
require a cautionary warning.
There are several situations in which such discretion might be appropriately exercised,
including the evidence of a defendant who implicates one or more of their co-
defendants when giving evidence in their own defence.
It is entirely a matter for the judge’s discretion whether any warning is given
(Makanjuola) and the Court of Appeal is reluctant to interfere with the exercise of
this discretion unless it was exercised unreasonably in the Wednesbury sense. If a
judge does choose to give a warning, the words in which it is given are also a matter
of judicial discretion. But if a judge, as part of a warning, advises a jury to look for
evidence that supports a particular witness’s testimony, the judge should identify
for the jury any evidence which, if believed, is capable of giving such support (see for
example B (MT) [2000] Crim LR 181).
Despite the very wide discretion described, it appears that a warning is virtually
mandatory when dealing with evidence of ‘cell confessions’ (Benedetto and Labrador
[2003] UKPC 27). Such witnesses may be ‘tainted by improper motive’ insofar as they
may derive some benefit from offering this evidence to the prosecution. Although a
warning will not always be required in this situation, the judge will need to consider
whether it is required (Stone [2005] EWCA Crim 105). More strongly, where an
accomplice (whether or not a co-defendant) has given evidence for the prosecution
it will ‘usually be necessary’ for the judge to give the jury a warning about the care
with which they should approach the accomplice’s evidence (Hunter [2002] EWCA
Crim 2693). There will still need to be an evidential basis for thinking that the witness
might have some purpose of their own to serve (Makanjuola). For another example
of a circumstance in which the Court of Appeal deemed a Makanjuola direction to be
necessary, see Walker [1996] Crim LR 742.
Activity 6.1
Write a direction to the jury in relation to the prosecution evidence of the
defendant’s accomplice awaiting sentence in the defendant’s trial for the
importation of drugs.
Further reading
¢ Cases: Makanjuola [1995] 3 All ER 730; Spencer [1987] AC 128; Stone [2005] EWCA
Crim 105; Walker [1996] Crim LR 742; Warwick Muncaster [1999] Crim LR 409;
Benedetto and Labrador [2003] UKPC 27; Stone [2005] Crim LR 569; Hersey [1998]
Crim LR 281; Gummerson and Steadman [1999] Crim LR 680.
To summarise, the old law requiring mandatory corroboration warnings in respect

to a limited number of categories of witnesses has been replaced by a wide system
of discretionary warnings. A judge will not give a warning merely because a witness
falls into one of the old corroboration warning categories (accomplices, children,
complainants in trials for sexual offences). However, prosecution evidence involving
‘cell confessions’ and, especially, accomplice evidence, would almost always call for a
Makanjuola direction.

from the directions formerly given to the jury on corroboration.
6.2 Directions about a defendant’s lies
Core texts
¢ Choo, Chapter 13 ‘Witnesses’, Section 3.5 ‘Evidence of accused’s lies’.
¢ Durston, Chapter 12 ‘Corroboration and identification evidence’, Sections 2.6

‘Defendant lies as supporting evidence’ to 2.8 ‘Consequences of a failure to give
a warning’.
Essential reading
¢ Crown Court Compendium (2018) Part 1, Section 16-3 ‘Lies’
www.judiciary.uk/publications/
¢ Cases: Lucas [1981] QB 720; Burge and Pegg [1996] 1 Cr App R 163; Harron [1996]
2 Cr App R 457; Barnett [2002] 2 Cr App R 168; Campbell [2006] EWCA Crim 1293;
Middleton (2000) The Times, 12 April; G (Sinan) [2006] EWCA Crim 207; Murray
[2016] EWCA Crim 1051; Williams [2018] EWCA Crim 1986.
There are two questions concerning judicial directions about a defendant’s lies:
u When should a Lucas direction be given?
u What should a Lucas direction say?

The leading case on this topic is Lucas [1981] QB 720, where the problem was discussed
in the context of the old corroboration law. You should study what was said in Lucas,
but you should also study Burge and Pegg [1996] 1 Cr App R 163, where the law was
restated. Note particularly what was said in Burge and Pegg about the four situations in
which a direction is usually required. (Note that a Lucas direction is not automatically
required where the defence relies on an alibi.) A Lucas direction is not to be used
simply where the prosecution attempts to show the defendant committed the crime,
and, if the jury finds the defendant guilty, this would mean the defendant had lied. In
particular, a direction is not required if the jury’s rejection of the defendant’s evidence
leaves them no choice but to convict. In such a case, a direction about lies would only
lead to confusion. See Harron [1996] 2 Cr App R 457, Middleton (2000) The Times, 12 April
and Barnett [2002] 2 Cr App R 168.
Lucas, Burge and Middleton were considered in Murray [2016] EWCA Crim 1051. Here
the defendant appealed against his conviction for the rape of a work colleague, the
complainant, on the basis that he had been accused at trial of telling lies to the police
concerning certain facts, and of further lies in his evidence at the trial itself, but had
not had the benefit of a Lucas direction in the judge’s summing up. The issue on appeal
was thus whether the judge had been required to provide such a direction.
The lies the defendant was accused of persisting in at the trial concerned the central
issue of whether he had committed the offence: the complainant said that he had
raped her after they had gone into one of the loading bays at their workplace for a
smoke, but the defendant (implausibly, given the CCTV evidence) not only denied the
rape, but denied that he had been aware of the complainant’s presence. One of them,
clearly, was lying but, given the centrality of the issue, a standard direction as to the
burden of proof on that issue sufficed. The Court of Appeal concluded that adding a
Lucas direction was not merely unnecessary, but would have been a potential source
of confusion for the jury in respect of what was really a straightforward issue.
The other alleged lie concerned the defendant’s initial denial, when first interviewed
under caution, that he had invited the complainant to join him for a smoke. He did
not, however, persist in that story, which formed no part of the defence case. Under
cross-examination at trial, he ‘could not recall’ ever having denied that fact. The
Court’s analysis here was that:
it is open to argument whether [the defendant’s] assertions in interview in relation to an

arrangement to meet were central or peripheral. He admitted in his evidence that he had
arranged to meet up during the cigarette break and, in any event, whatever might have
been suggested in cross examination, the case was not left to the jury on the basis that
[his] honesty could be tested by reference to a decision on this issue. Neither did counsel
suggest that a Lucas direction was necessary on the basis that it was being contended
that such a lie would itself be evidence of guilt. What was critical to the case was whether
the jury were sure of the evidence of [the complainant] in the light of [the defendant’s]
emphatic denial that he had even seen her on the loading bay, let alone assaulted her.
D’s appeal was accordingly dismissed.
A Lucas direction has three parts:
u The judge must tell the jury the lie is only evidence of guilt if the jury is satisfied the
lie was made deliberately.
u The judge must remind the jury that people might lie not because they are guilty,
but for other reasons (for example, to bolster a weak case; to protect someone, out
of panic; or to cover up disgraceful behaviour).
u The judge must tell the jury that, because the lie alone is insufficient evidence,
they should not rely solely on the lie but should also look to the other evidence to
corroborate guilt.
Where it is appropriate to give a Lucas direction, the main aim is to caution the jury
against overestimating the significance of the lies, emphasising the proof requirements
for the jury to consider where the lies are not admitted and drawing attention to any
innocent explanation offered by the defendant if the lies are admitted.
Activity 6.2
What reasons, other than being guilty of the offence with which they are charged,
might a defendant have for providing the police with a false alibi?
1. What is the gist of the Lucas direction, according to the Court of Appeal in Burge
and Pegg?
2. When, according to Burge and Pegg, is a Lucas direction usually required?
3. Give your own example of (i) a situation where a Lucas/Burge warning in respect
of a defendant’s lie should be given, and (ii) a situation where it should not.
4. What is a Makanjuola warning?
Where reliance is, or might be, placed on a defendant’s lies, the jury has to be warned
in specified terms. In particular, it must be warned that defendants sometimes lie for
reasons that are unconnected with the offences with which they are charged.

u give an account of the decision in Lucas and show how the law was restated
in Burge and Pegg
relation to a defendant’s evidence.
6.3 Eyewitness identification testimony
Core texts
¢ Choo, Chapter 6 ‘Identification evidence’, Sections 1 ‘Mistaken identifications’ to
3.2 ‘Exclusion for breaches of Code D’ and 5 ‘Summary and conclusion’.
¢ Durston, Chapter 12 ‘Corroboration and identification evidence’, Sections 2

‘Identification evidence’ and 3 ‘Identification procedures’.
Essential reading
¢ Ashworth and Redmayne, Chapter 5 ‘Gathering evidence’, Section 5.3
‘Eyewitness identification evidence’ (available on the VLE).
¢ Report to the Secretary of State for the Home Department of the Departmental
Committee on Evidence of Identification in Criminal Cases (‘The Devlin Report’)
para.4.25 (available on the VLE).
¢ Cases: Turnbull [1977] QB 224; Gayle [1999] 2 Cr App R 130; Shervington [2008] Crim
LR 581, CA; Hallam [2012] EWCA Crim 1158; Kelly [1992] Crim LR 181; Hickin [1996]
Crim LR 584; Hersey [1998] Crim LR 281; Gummerson and Steadman [1999] Crim LR
680; Roberts [2000] Crim LR 183; Daley [1994] AC 117; Holmes [2014] EWCA Crim
420; Najjar [2014] All ER (D) 87.
From time to time during the 20th century it became apparent that miscarriages of
justice had occurred because of honest but mistaken identification of a defendant
by prosecution witnesses. One of the reasons for the establishment of the Court
of Criminal Appeal in 1907 was the revelation of a particularly startling miscarriage
of justice of this kind (the case of Adolf Beck) but, despite the existence of this new
appellate court, similar miscarriages of justice continued to occur.
Two such cases in 1974 led to the setting up of a committee under Lord Devlin to
review all aspects of the law and procedure relating to identification evidence in
criminal cases and to make recommendations. In fact, the Devlin Report was not acted
on. Instead, the Court of Appeal recommended a new approach by trial judges to deal
with the problems of identification evidence. It did this in Turnbull [1977] QB 224.
Further reading
¢ Roberts, A. ‘Eyewitness identification evidence: procedural developments and
the ends of adjudicative accuracy’ (2008) 6(2) International Commentary on
Evidence.
¢ Davies, G. and L. Griffiths ‘Eyewitness identification and the English courts: a

century of trial and error’ (2008) 15(3) Psychiatry, Psychology and Law 435.
6.3.1 Turnbull directions

In Turnbull [1977] QB 224 the Court of Appeal acknowledged that evidence of
visual identification presented special difficulties in criminal trials and had led to
miscarriages of justice. To deal with this problem, the Court laid down guidelines for
judges summing up in trials where the prosecution relies on contested identification
evidence. Failure to follow the Turnbull guidelines may well lead to the quashing of a
conviction as unsafe. To understand how the guidelines work, you need to be able to
answer two basic questions:
u When do the Turnbull guidelines apply?
u What do the guidelines require a judge to do?
The guidelines apply whenever the prosecution case depends ‘wholly or substantially’
on the correctness of one or more identifications of the defendant and the defence
alleges that the identifying witnesses are mistaken (Turnbull). The words in quotation
marks appear to suggest that a Turnbull direction would not be required if the
identification evidence was only a small item in a mass of other evidence against
the defendant but in practice it is rare that a judge would omit the direction even
in those circumstances. For a recent example in which it was appropriately omitted,
see Najjar [2014] All ER (D) 87. Only in the most exceptional circumstances would a
conviction based on unsupported identification evidence be sustained in the absence
of a Turnbull warning. For a rare example of an appeal being dismissed despite a failure
to give the requisite Turnbull direction, see Freemantle [1995] 1 Cr App R 1, PC. In such
cases, the question for the Court of Appeal will be: was the identification evidence of
such exceptional quality that the jury would inevitably have convicted had a Turnbull
direction been given? If not, the conviction will be unsafe and should be quashed.
A Turnbull direction must be given where identification is based on recognition, as

well as in other situations where the risk of error might seem greater, for example,
where the identification is based only on a witness’s fleeting glimpse (Shand v The
Queen [1996] 1 WLR 69, 72). Where the presence of the defendant at the scene of
the crime is not disputed, but their participation in the crime is disputed, a Turnbull
direction should be given if there is a possibility that the witness has mistaken one
person for another (Thornton [1995] 1 Cr App R 578 and Slater [1995] 1 Cr App R 584). If
the defence is not that the identifying witness is mistaken, but that they are lying,
the judge should still normally tell the jury to consider whether they are satisfied that
the witness was not mistaken (Shand v The Queen). However, there have been some
cases where the Court of Appeal has upheld a trial judge’s decision to dispense with a
Turnbull direction completely (see, for example, Cape [1996] 1 Cr App R 191).
It seems that a Turnbull direction will not be required where a witness does not
identify a suspect, but merely gives evidence of descriptive details of someone they
saw, which points to the suspect as the person guilty of the alleged offence. See Byron
(1999) The Times, 10 March and Gayle [1999] 2 Cr App R 130. For the reasoning behind
this distinction between evidence of identification and evidence of description, see
the judgment of Henry LJ in Gayle. The Court of Appeal was considering the need for
an identification parade, but the reasoning seems to apply equally to the need for a
Turnbull direction.
Gray [2018] EWCA Crim 2083 illustrates the ability of supporting evidence to
compensate for otherwise inadequate identification evidence. Thirlwell LJ observed
that, in accordance with Turnbull, ‘odd coincidences can, if unexplained, be
supporting evidence’. In this case, the defendant had not attempted to explain these
coincidences, but exercised his right to remain silent in interview. This was a matter
that the trial judge had been entitled to take into account in deciding whether or not
there was a case to answer. Although at the time the Court of Appeal was critical of
deficiencies in the trial judge’s summing up, which (inter alia) provided insufficient
guidance on the use of supporting evidence, they were nevertheless satisfied that the
defendant’s conviction was safe.
6.3.2 What does a Turnbull direction require?

Many candidates in the examination recognise situations requiring a Turnbull
direction, but fail to get good marks in the question because they do not fully set out
what such a direction requires. You should memorise the following four stages:
1. The judge tells the jury of the special need for caution before convicting on
reliance on identification evidence.
2. The judge explains the reason for this warning. Some reference should be made
to the possibility that a mistaken witness can be convincing, and that a number
of convincing witnesses can all be mistaken. In Pattinson and Exley [1996] 1 Cr App
R 51, the Court of Appeal criticised a direction on identification for failing to make
adequate reference to the risk of miscarriages of justice resulting from mistaken
identification evidence. But this cannot, yet, be described as an essential element
in every case. In Mills v The Queen [1995] 3 All ER 865 it was said that judges have a
broad discretion to express themselves in their own way when giving a direction
on identification. All that is necessary is that they should comply with the sense
and spirit of the guidance in Turnbull.
3. The judge directs the jury to examine closely the circumstances in which each
identification was made. In Turnbull the Court gave suggestions for possible
subjects of judicial comment. But there was no intention to draw up an exclusive
list, and where a judge has failed to point out weaknesses in the identification
evidence, the Court of Appeal has been flexible in its approach. In Pattinson
and Exley the Court said that it was not necessary in every case for the judge to
summarise all the weaknesses of the identification evidence, and that if they chose
to do so, there should be a summary of strengths as well (see also Qadir [1998] Crim
LR 828). But in some cases, for example Popat (No 2) [2000] 1 Cr App R 387, a failure
to point out weaknesses has been the basis of a successful appeal.
4. The judge goes on to direct the jury to consider whether the identification
evidence is supported by any other evidence. Evidence that is capable, if believed,
of providing such support should be identified. Lies told by a defendant may
provide support for identification evidence if the jury are satisfied that the lies are
deliberate and relate to that issue. The jury must be given a direction along the
general lines indicated in Lucas [1981] 73 Cr App R 159 at 162, CA; Goodway (1994) 98
Cr App R 11, CA.
The dangers of mistaken identification and the need for supporting evidence in cases
of weak identification were emphasised in Hallam [2012] EWCA Crim 1158.
6.3.3 Withdrawing the case from the jury

If the prosecution case relies upon contested identification evidence of poor quality
and there is no other evidence in the case to support the identification, it is the judge’s
duty to withdraw the case from the jury and to direct an acquittal (Turnbull). An
interesting justification for this duty is provided in Daley (1994).
Where a prosecution case is entirely dependent on the victim’s identification of the

defendant, the judge should analyse the identification issues and should set out their
reasons for allowing the case to proceed. A failure to do so is not in itself a ground
for quashing a conviction, as it then falls to be asked whether the judge erred in their
approach or reached an unreasonable decision: Shervington [2008] Crim LR 581, CA.
Activity 6.3
Why did the Devlin Committee conclude that identification evidence was
particularly hazardous?
1. If the defendant’s presence at the scene of the crime is not disputed, are there
any circumstances in which a Turnbull direction should be given?
2. Should there be a Turnbull direction where identification evidence is based on

recognition, rather than on a fleeting glimpse by the witness?
3. Should a Turnbull direction be given where the defence is not that the
identifying witness is mistaken, but that they are deliberately giving false
evidence?
4. What is the distinction between evidence of identification and evidence of

description?
5. Where evidence of voice identification is relied on, how should the judge direct
the jury?
6. What are the elements of a Turnbull direction?
7. To what extent is a judge required to summarise weaknesses in the

identification evidence when giving a Turnbull direction?
8. What was said in Turnbull about identification evidence and submissions that
there is no case to answer?
The key points are that, where the prosecution relies on identification evidence
that is contested by the accused, the judge must tell the jury of the special need for
caution, and the reason for that special need. Any weaknesses in the circumstances
surrounding identification should generally be mentioned, and the jury should be
invited to consider if the identification evidence is supported by any other evidence.

u explain (fully) what a Turnbull direction requires a judge to do.
6.4 Pre-trial identification procedures
Essential reading
¢ Code of Practice for the Identification of Persons by Police Officers (Code D) of
PACE 1984. Please note that the only parts of Code D of PACE 1984 on which you
will be examined are paras 3.1, 3.1A, 3.2 and 3.3 and the annexes A–E.
¢ Cases: Forbes [2001] 1 All ER 686; Gojra (Ranjit) [2010] EWCA Crim 1939; Popat
[1998] 2 Cr App R 208; Byrne [2016] All ER (D) 129 (Nov); LT [2019] EWCA Crim 58,
[2019] 4 WLR 51.
Code D of PACE 1984 is a second means of reducing the risk of miscarriages of justice
deriving from mistaken identifications. The Code is periodically updated and the
current edition came into force on 23 February 2017. The code is available at: www.gov.
uk/government/publications/pace-code-d-2017
Failure to comply with these provisions can be the basis for an application under
s.78(1) of PACE 1984 to exclude evidence on which the prosecution proposes to rely.
Breaches of Code D can (but do not always) result in the exclusion of identification
evidence under s.78(1) of PACE 1984. This is because failure to observe the Code can
affect the reliability of the evidence, and reliability is an important consideration in the
application of s.78(1). An important case on the consequences of non-compliance with
the provisions of Code D is Gojra (Ranjit) [2010] EWCA Crim 1939. Useful commentary on
the case is provided by Andrew Roberts in Callie (Johnny) [2011] Crim LR 311. Even where
breaches of Code D do not justify the exclusion of identification evidence, they may
require appropriate warnings to be given to the jury (Forbes [2001] 1 All ER 686).
Further guidance as to the handling of identification evidence in cases where there

have been minor breaches of Code D can be found in Lariba [2015] EWCA Crim 478.
Forbes [2001] 1 AC 473 and Lariba [2015] EWCA Crim 478 were considered in Byrne [2016]
All ER (D) 129 (Nov), in which the defendant had been identified when a police officer,
leafing through a bundle of graphics prepared by a colleague investigating other
offences, saw a photograph of the defendant and recognised him as someone he had
once observed driving a van that was allegedly used in the commission of two bank
robberies which the officer himself was investigating.
The Court of Appeal had to consider whether a formal identification procedure ought
to have been held in accordance with para.3.12 of Code D, and (if so) whether failure
to hold it necessitated exclusion of the identification evidence. The first question was
answered in the affirmative: such a procedure would have been a useful safeguard and
it would have been practicable in the circumstances of the case. However, it did not
follow that the evidence ought to have been excluded. The judge had been right to
leave this evidence to the jury, and leave them to decide what weight to give to that
evidence.
The judge’s summing-up pointed out that ‘best practice’ had not been followed,
and provided the jury with guidance on how to address the reliability of the officer’s
purported recognition.
Activity 6.4
Read through para.3.12 of Code D of PACE 1984 and then put it away. From memory
list the circumstances in which an identification parade must be held. Now think of
a circumstance in which this obligation would not apply.
Why do Ashworth and Redmayne claim that there is ‘room for concern that,
despite the difficulties that juries must face in gauging the accuracy of eyewitness
identifications, the courts continue to put too much faith in juries’?

be able to:
from the directions formerly given to the jury on corroboration
u give an account of the decision in Lucas and show how the law was restated in
Burge and Pegg
relation to a defendant’s evidence
u explain (fully) what a Turnbull direction requires a judge to do
u describe the main procedures for identification set out in Code D of PACE 1984
u describe the circumstances in which Code D does and does not apply
u describe the circumstances in which a breach of Code D will result in the
exclusion of the identification evidence.
Quick quiz
Question 1
Which of the following statements is true?
a. A Lucas direction is rarely required as a result of the decision in Burge.
b. A Lucas direction is necessary where the prosecution seeks to rely on a lie told by
the defendant as evidence of their guilt.
c. The law requires Lucas directions to be given because the burden of proving an
alibi falls on the defendant.
Question 2
Why is a Lucas direction normally required when a defendant relies on an alibi in their
defence?
a. Because of the danger that if the jury does not believe the alibi, it will equate the
false alibi with guilt and not take account of possible innocent explanations for the
defendant’s lie.
b. Because corroborating evidence is required for alibis.
c. Because defendants’ alibis are generally false.
Question 3
When must a Turnbull direction be given to a jury?
a. Whenever the case against an accused person depends wholly or substantially on

the correctness of one or more identifications of the accused which the defence
allege to be mistaken.
b. Whenever the police have failed to conduct an identification procedure in

compliance with Code D of PACE 1984.
c. Whenever the case against an accused person depends wholly or substantially

on correctness of one or more identifications which have not been made in
compliance with Code D of PACE 1984.
Question 4
According to the decision in Turnbull when should a judge withdraw a case from the
jury?
a. Where the identification evidence is poor unless there is other evidence supportive
of the correctness of the identification.
b. Where the identification evidence is poor.
c. Where the identification evidence is good but it is the only evidence in the
prosecution case.
Question 5
When must a Forbes direction be given?
a. Where the identification evidence is descriptive only.
b. Where disputed identification evidence is admitted in spite of a breach of Code D

of PACE 1984.
c. Where the identification evidence is excluded on account of a breach of Code D of

PACE 1984.

Question 1
What are the main problems with identification evidence? Does the law of evidence
deal with them adequately?
Question 2
Consider the following extract from a summing up to the jury. On the basis that a
conviction resulted, advise whether there are grounds for appeal:
Jane Roberts described her assailant as a tall, white, bald man with a red beard.
This description fits the defendant. She was confident she would be able to identify
her assailant at an identification parade. Perhaps the police should have held
an identification parade but was this really necessary after another witness had
already identified him in an identification parade? The workload of the police is
steadily increasing and you should not hold this failure against the police. The
police did show Jane Roberts a photo of the defendant and she agreed that he was
the assailant. The defence cross-examined Jane Roberts and she remained adamant
that the defendant was her attacker. You might think that this is very powerful
evidence against the defendant.
Advice on answering the questions

Question 1
A pass answer would demonstrate familiarity with the dangers associated with
eyewitness testimony, the decision in Turnbull and the application of Code D of
PACE 1984. Better answers would include references to the report of the Devlin
Committee, and the dangers discussed in Hallam [2012] EWCA Crim 1158. Very good
answers would consider: (i) whether the law should have gone further and adopted
the recommendations of the Devlin Committee, and (ii) the consequences of non-
compliance with the provisions of Code D. Particularly good answers might make
reference to the views of academic commentators such as Andrew Roberts.
Question 2
Notes
7 Evidence of a complainant’s extraneous sexual
behaviour in trials of sexual offences
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.1 Legislative background . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.2 Sections 41–43 of the Youth Justice and Criminal Evidence Act 1999 . . . 78
7.3 R v A (No 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
7.4 The application of YJCEA 1999 since R v A (No 2) . . . . . . . . . . . . . . 79
7.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.6 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Introduction
Sections 41–43 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) place
restrictions on evidence and questions about a complainant’s sexual history in trials
of sexual offences. These sections are complex and you will need to read them very
carefully. They have generated a wealth of case law, including a controversial and
influential decision by the House of Lords in the case of R v A (No 2) [2001] UKHL 25. This
used s.3 of the Human Rights Act 1998 to interpret the provisions in accordance with
Article 6 of the European Convention on Human Rights (ECHR). You will need to get
to grips with the statutory provisions and their interpretation so that you are able to
apply the law in a problem scenario.
You also need to critically evaluate both the statutory provisions and the ways in which
the provisions have been interpreted in the case law. In order to do this you need to
understand the historical background and the objectives of the statutory provisions. In
addition to the objectives of the law of evidence discussed in Chapter 2 of this guide,
and the objectives of ss.41–43 of the YJCEA 1999, you will also need to consider the
rights of the defendant under Article 6 and of the complainant under Article 8 of the
ECHR, and the difficulties in striking a balance between them in trials of sexual offences.
This topic provides an illustration of the sometimes subjective (and often culturally
determined) nature of the concept of relevance. It is a good area for examining the
workings of ‘common sense’ reasoning and for challenging your own assumptions
about sexual behaviour. Should the question of relevance be left to the judge’s
discretion or is Parliament right to seek to reduce judicial discretion to a minimum in
this area? (See Emson, p.486 in the Further reading.) To what extent have the courts
undermined Parliament’s attempts to constrain their discretion? How satisfactory
is the current position? (See the listed cases; Durston, Chapter 10, Section 5.12
‘Convention compliance and the 1999 Act’ and the Further reading.)
Although ss.41–43 of the YJCEA 1999 apply to trials of all sexual offences, we will
focus on allegations of rape. The offence of rape is established where it is proven
that the defendant has (1) intentionally penetrated the vagina, anus or mouth of the
complainant with his penis, (2) the complainant did not consent to the penetration,
and (3) the defendant did not reasonably believe that the complainant consented (s.1
of the Sexual Offences Act 2003).
Core texts
¢ Choo, Chapter 13 ‘Witnesses’, Section 4.2.3 ‘Restriction on sexual history evidence’.
¢ Durston, Chapter 10 ‘The course of evidence: cross-examination and

re‑examination’, Section 5 ‘The cross-examination of sexual offence
complainants’.
Essential reading
¢ McGlynn, C. ‘Rape trials and sexual history evidence: reforming the law on third-
party evidence’ (2017) 81(5) JCL 367 (available in Westlaw via the Online Library).
This article is clearly argued.
¢ Hoyano, L. The Operation of YJCEA 1999 section 41 in the Courts of England & Wales:
views from the barristers’ row. An independent empirical study commissioned by
the Criminal Bar Association (2018) (see https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=3295246). Note you do not need to concern yourself with the
procedural issues.
¢ Cases: A (No 2) [2001] UKHL 25; Mukadi [2003] EWCA Crim 3765; R [2003] EWCA Crim
2754; White [2004] EWCA Crim 946; Hamadi [2007] EWCA Crim 3048; Beedall [2007]
EWCA Crim 23; Martin [2004] EWCA Crim 916; Ben-Rejab [2012] 1 WLR 2364; T [2004]
2 Cr App R 32; R v Guthrie (Germaine) [2016] EWCA Crim 1633; Evans [2016] EWCA
Crim 452; Harris [2009] EWCA Crim 434; Gjoni [2014] EWCA Crim 691, [2014] Crim LR
765 (the Crim LR contains useful commentary on the case you will find helpful);
R v Aidarus [2018] EWCA Crim 2073.
Evidence 7 Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences page 77
¢ Statutory provisions: ss.41–43 of the Youth Justice and Criminal Evidence Act; s.3
of the Human Rights Act 1998; Article 6 of the European Convention on Human
Rights.
Further reading
¢ Redmayne, M. ‘Myths, relationships and coincidences: the new problems of
sexual history’ (2003) 7(2) IJEP 75. (This is a complex article and you should not
be discouraged by the fact that much of its reasoning is difficult to follow. It is
useful to read even if you only follow some of its points.)
¢ McGlynn, C. Rape trials and sexual history evidence policy briefing (2018) (in
Westlaw via the Online Library).
¢ McGlynn, C. ‘Challenging the law on sexual history evidence: a response to Dent

and Paul’ (2018) 3 Crim LR 216 (in Westlaw via the Online Library).
¢ Emson, Chapter 16 ‘Evidence of sexual behaviour’ (available on the VLE).
Learning outcomes
u describe the changes effected by ss.41–43 of the Youth Justice and Criminal
Evidence Act 1999 in relation to cross-examination of complainants, and
evidence adduced, in trials where a defendant is charged with a sexual offence
u explain the effect of R v A (No 2) [2001] UKHL 25 on s.41 of the YJCE, and provide
illustrations from cases decided since R v A (No 2)
7.1 Legislative background

It is useful for you to be aware of the legislative background because this will enable
you to understand the reasons why policymakers sought to further limit judicial
discretion, and to appreciate commentators’ grounds for concern about any attempts
by the courts to widen their discretion. It also helps you to understand why some
commentators think that ss.41–43 of the YJCEA 1999 went too far in constraining
judicial discretion.
Section 2 of the Sexual Offences (Amendment) Act 1976 was the first legislative
attempt to restrict the circumstances in which evidence of the complainant’s
extraneous sexual history (extraneous to the offence alleged) could be adduced or be
the subject of cross-examination. The Act has its origins in the Report of the Heilbron
Advisory Group on the Law of Rape. The Advisory Group felt that ‘unless there are some
restrictions, questioning can take place which does not advance the cause of justice
but in effect puts the woman on trial’. The Advisory Group treated previous sexual
association between the complainant and the accused as potentially relevant, but
advised that in general the previous sexual history of the complainant with other men
was irrelevant (Report of the Advisory Group on the Law of Rape, CM6352 (HMSO 1975)).
Section 2 of the Sexual Offences (Amendment) Act 1976 made all evidence and
questions in cross-examination ‘about any sexual experience of a complainant with
a person other than the defendant’ subject to the leave of the court and provided
that the trial judge must not give leave unless ‘satisfied that it would be unfair to that
defendant to refuse to allow the evidence to be adduced or the question to be asked’.
In Viola [1982] 1 WLR 1138 Lord Lane CJ said that trial judges should generally disallow
questions merely going to credit. Conversely, questions ‘relevant to an issue in the
trial in the light of the way the case is being run’ (e.g. consent and belief in consent)
should normally be permitted ‘because to exclude a relevant question on an issue in
the trial…will usually mean that the jury are being prevented from hearing something
which, if they hear it, might cause them to change their minds about the evidence
given by the complainant’. In other words, Lord Lane undermined the purpose of the
statutory provision by construing its application so narrowly.
In 1998, Speaking up for Justice, a Home Office Report, noted that leave was granted for
the admission of sexual history evidence in the vast majority of applications under s.2
of the Sexual Offences (Amendment) Act 1976 and that the statutory provision was
not serving its purpose. As a result of a perception that the judiciary was not applying
the provisions of the 1976 legislation in the spirit in which they were intended, the
provisions were replaced by ss.41–43 of the YJCEA 1999. These provisions sought to
severely curtail judicial discretion by prescribing limited circumstances in which
evidence of the previous sexual history of the complainant could be adduced in
evidence or cross-examination.
Principal differences between the 1976 and the 1999 Acts:
1. The 1976 Act restrictions had no application to previous sexual experience between
the complainant and the accused.
2. Under the 1976 Act the judge could disapply the restrictions if satisfied that it
would be ‘unfair to the defendant’ to refuse to allow the evidence to be adduced
or the question to be asked. Under the 1999 Act, the judge may only give leave if
satisfied that it is relevant to an issue in the case and that a refusal of leave might
render the jury’s conclusion ‘unsafe’. ‘Unsafe’ is, of course, the single ground for
allowing an appeal against conviction under the Criminal Appeal Act 1968.
7.2 Sections 41–43 of the Youth Justice and Criminal Evidence

Act 1999
It is important to be familiar with ss.41–43 of the YJCEA 1999 because they are complex.
Read the provisions carefully in your statute book. It is important to understand the
distinction made between trials where the issue is not one of consent, and trials
where there is an issue of consent. You should be aware that defendants can raise a
defence of reasonable belief in consent as well as a defence of actual consent. Thus
it would be possible for someone charged with rape to say: ‘They were consenting;
but if I’m wrong about that, their behaviour certainly led me to believe that they were
consenting.’ In any problem question on this subject you will need to think carefully
about what the defendant is alleged to have said after the event, especially to the
police and to their solicitors, in order to determine whether both defences are being
raised. A defence of belief in consent does not raise an issue of consent (see s.42(1)).
1. What does s.41 prohibit?
2. According to s.41, when can leave be given?
3. Define ‘sexual behaviour’ for the purposes of s.41 (you will find it useful to read
Ben-Rejab [2012] 1 WLR 2364 to appreciate the breadth of this term).
7.3 R v A (No 2)
You should read the judgment of R v A (No 2) [2001] UKHL 25 in full. It provides a very
useful summary of the historical background to the introduction of ss.41–43 of the
YJCEA 1999 and has important and controversial implications for the application of
these provisions. The feedback activities and self-assessment questions are designed
to ensure you have read and understand this complex judgment.
Activity 7.1 – Key case analysis: R v A (No 2)

Read R v A (No 2) and answer the following questions.
a. What did the defendant claim in his defence to the charge of rape?
b. At the preparatory hearing for his trial, what did the defendant seek leave to do?
c. Why was leave required for him to do this?
d. Why did the Court of Appeal state that the trial judge’s exclusion of the evidence
was wrong?
e. What did Rose LJ in the Court of Appeal conclude the effect of the Act was in
relation to the admissibility of the alleged previous sexual relationship between
the complainant and the accused, on the issue of consent?
f. What was the question certified by the Court of Appeal which gave leave to
appeal to the House of Lords?
g. According to Lord Slynn, what had become plain in recent years?
h. According to Lord Slynn, why was it necessary to prohibit questioning the

complainant about having had sex with men other than the accused?
i. According to Lord Slynn, what danger is presented by the admission of evidence

of previous sex between the complainant and the accused?
j. What was the ‘obvious conflict’ identified by Lord Slynn?
k. Does the cross-examination of complainants in sexual offences pose dangers

only for the individual complainant?
l. What does s.3 of the Human Rights Act 1998 require?
m. What did Lord Slynn say about using s.3 of the Human Rights Act 1998 to
interpret the phrase ‘at or about the same time’ in s.41(3)(b)?
n. How did Lord Steyn say s.41, and in particular subs.41(3)(c), should be read?
o. What did Lord Slynn agree and Lord Steyn say about the effect of their decision?
p. What did Lord Steyn say about the result of this decision?
q. How did Lord Steyn think that a prior sexual relationship between the
complainant and the accused could be relevant to the issue of consent?
r. Find one example of a previous sexual encounter between an accused and a

complainant which their Lordships would not deem relevant.
s. Find one example of a previous sexual encounter between an accused and a

complainant which their Lordships would deem relevant.
t. What was Lord Steyn’s view on the way in which the YJCEA 1999 deals with prior
sexual relationships between the complainant and persons other than the
accused?
u. What four examples did Lord Hope provide in R v A (No 2) of issues which might
fall within s.41(3)(a)?
1. Write a paragraph in praise of the decision in R v A (No 2).
2. Write a paragraph criticising the decision in R v A (No 2).
7.4 The application of YJCEA 1999 since R v A (No 2)

It will be helpful to read in full as many of the cases as you can. In doing so, try to make
a note of the subsection in relation to which the admissibility was made and either
admitted or excluded. The logic in some cases (e.g. Mukadi) is difficult to follow; close
analysis of a case might raise more questions than it answers.
1. What subsections of s.41 were under consideration in Martin? In the Court of
Appeal’s view, should the judge have granted leave? Why?
2. What subsection of s.41 was under consideration in Mukadi? How does the case
of Mukadi illustrate the subjective nature of the concept of relevance? Which
decision do you agree with, (i) that of the trial judge or (ii) that of the Court of
Appeal?
3. In White what did the Court of Appeal say about the application of s.3 of the
Human Rights Act 1998 to s.41(3)(c) in a case where evidence of sexual acts of the
complainant with men other than the accused is sought to be adduced? Did the
Court of Appeal think that the trial judge should have granted leave in this case?
For what reasons?
4. What subsection of s.41 was under consideration in R v R? Did the Court of

Appeal think the trial judge should have granted leave? On what basis?
5. Which subsections of s.41 were under consideration in Hamadi? What were

the appellant’s arguments? How persuasive do you find the argument? Did
the Court of Appeal think that the trial judge should have granted leave? What
were the Court’s reasons? What did the Court say about the implications for the
interpretation of s.41(3)(5) of the decision in R v A (No 2)?
6. In Beedall what reason did the Court of Appeal provide for agreeing with the trial
judge’s refusal to grant leave?
7. Read R v T [2004] 2 Cr App R 32; R v Guthrie (Germaine) [2016] EWCA Crim 1633;
Evans [2016] EWCA Crim 452 and Harris [2009] EWCA Crim 434 and use these
decisions to evaluate s.41(3)(c).
7.5 Eye on relevance

Re-read the extract from Dennis’s textbook in Activity 2.1 of Chapter 2, then read the
Court of Appeal’s ruling in Mukadi. Note that when a court rules on the relevance
of a piece of evidence (in this case the suggestion that the complainant got into a
stranger’s car), the court is ruling on whether the evidence, if believed, would render a
fact in issue (in this case whether the intercourse was consensual) more, or less, likely.
The court is not ruling on whether the evidence does make the defendant’s version of
events (that consent was present) more likely to be true, but on whether a jury might
legitimately infer the presence of consent from the evidence.
The Court of Appeal’s ruling in this case has been the subject of an enormous amount
of criticism. It is good for you to read it in detail to see if you can work out what the
Court of Appeal’s chain of reasoning could have been for ruling that this evidence
was probative and that the trial judge had been wrong to exclude it. The clearest
indication we have of the Court of Appeal’s reasoning is in para.11 of the judgment.
From this we have mapped out one potential chain of reasoning. Try to identify
underlying assumptions or generalisations that could support each inferential step
(connoted by the symbol >) and think about which of the inferential steps is the
biggest or least justifiable. The extract from Dennis will help you to do this.
(a) The complainant got into a male stranger’s car and exchanged telephone numbers
with him shortly before meeting the defendant > (supports the inference that)
(b) The complainant was not adverse to some form of sexual activity shortly before
meeting the defendant > (supports the inference that)
(c) The complainant wanted to engage in sexual activity when she met the defendant
> (supports the inference that)
(d) The complainant’s statement that she accompanied the defendant to see if they
could be friends, and not for the purpose of engaging in any form of sexual activity,
was a lie > (supports the inference that)
(d) The complainant’s statement that she did not consent to the sexual intercourse
was a lie > (supports the inference that)
(e) The intercourse between the complainant and the defendant was with the
complainant’s consent.
Activity 7.2
Once you have worked through the above, write a paragraph of critical evaluation
on the Court of Appeal’s decision. Then you could try playing with the chain of
reasoning, to see what, if any, alternative chain of reasoning you can come up
with. Then you could repeat the activity for your new chain of reasoning. You could
repeat this activity for all of the cases in this chapter!
Further reading
¢ Redmayne, M. ‘Myths, relationships and coincidences: the new problems of
sexual history’ (2003) 7(2) IJEP 75.
Essential reading
¢ Ministry of Justice, ‘Limiting the use of complainants’ sexual history in sex cases:
Section 41 of the Youth Justice and Criminal Evidence Act 1999: the law on the
admissibility of sexual history evidence in practice’ (2017) Cm 9547’ (see www.
gov.uk/government/uploads/system/uploads/attachment_data/file/667675/
limiting-the-use-of-sexual_history-evidence-in-sex_cases.pdf).
¢ Hoyano, L. The Operation of YJCEA 1999 section 41 in the Courts of England & Wales:
views from the barristers’ row. An independent empirical study commissioned by
the Criminal Bar Association (2018) (see https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=3295246). Note you do not need to concern yourself with the
procedural issues.
Further reading
¢ Emson, Chapter 16 ‘Evidence of sexual behaviour’ (available on the VLE).
¢ McGlynn, C. Rape trials and sexual history evidence policy briefing (2018) (available
at https://claremcglynn.com/rape-law-and-justice/sexual-history-evidence-and-
law-reform/ ).
¢ McGlynn, C. ‘Challenging the law on sexual history evidence: a response to Dent

and Paul’ (2018) 3 Crim LR 216 (available in Westlaw via the Online Library).
One concern about the admission of the complainant’s sexual history in a case is its
potential to have a prejudicial impact on the complainant. Part of this risk is that,
regardless of whether a jury believes the complainant has been raped, some jury
members might choose to acquit because they hold the complainant to be morally
responsible for the assault. Other potential prejudicial impacts include unfairly
undermining the credibility of the complainant’s account and distracting the jury from
the real issues in the case.
You will have seen that debating the relevance of sexual history evidence is where
things get really complicated and controversial. When is such evidence relevant and
what issues is it relevant to?
McGlynn argues that sexual history evidence (whether it be with third parties or
with the defendant) should not be used to prove consent, or reasonable belief in
consent. She argues that the only basis for finding such evidence relevant to consent
or reasonable belief in consent is the discredited ‘twin myths’ (as described in the
Canadian case of Seaboyer [1991] 2 SCR 577 and referred to in the House of Lords
decision in R v A (No 2)). The relevance of sexual history to the question of whether
the defendant held a reasonable belief in consent is one that had not received much
attention in evidence scholarship until Laura Hoyano’s commentary in the Criminal
Law Review on the case of Gjoni [2014] EWCA Crim 691, [2014] Crim LR 765.
McGlynn wants to strike down the similarity exception (s. 41(3)(c)), particularly for
third party evidence. You will be familiar with this exception and will probably have
struggled repeatedly with its interpretation – both because of its confusing wording in
the statute and on account of the ambiguity surrounding its purpose. McGlynn argues
that such evidence is both irrelevant and prejudicial.
In fact, McGlynn argues that no evidence of a complainant’s sexual history with third
parties should be admissible in a rape trial, except for in rare circumstances in which it
is required to show the source or origin of semen, pregnancy or disease. She says this
would prevent evidence being admitted in cases such as that admitted in Evans (2016).
You will appreciate from your readings that not everyone agrees with McGlynn.
Hoyano’s empirical study revealed that the prevalent view among barristers is that
s.41 works in the interests of justice, particularly since R v A (No 2) now provides a form
of safety valve to ensure that the defendant is not deprived of a fair trial by having the
jury deprived of relevant information concerning the situation in which the parties
were placed. Significantly, not a single respondent thought that s.41 should be made
more restrictive.
1. Should the question of relevance be left to the judge’s discretion or is
Parliament right to seek to reduce judicial discretion to a minimum in this area?
2. To what extent have the courts undermined Parliament’s attempts to constrain

their discretion?
3. To what extent, if any, do the courts continue to subscribe to the discredited

‘twin myths’?
4. How could the law in this area be improved?

be able to:
u describe the changes effected by ss.41–43 of the Youth Justice and Criminal
Evidence Act 1999 in relation to cross-examination of complainants, and
evidence adduced, in trials where a defendant is charged with a sexual offence
u explain the effect of R v A (No 2) [2001] UKHL 25 on s.41 of the YJCE, and provide
illustrations from cases decided since R v A (No 2)
Quick quiz
Question 1
In what cases does s.41 of the Youth Justice and Criminal Evidence Act 1999 apply?
a. All cases in which the prosecution witness is a person of immoral character.
b. All cases in which a witness and a defendant have had a previous sexual
relationship.
c. Cases in which the defendant is charged with a sexual offence.
Question 2
Which of the following is correct?
a. According to s.41 the defence may not adduce evidence or ask the complainant
about their sexual behaviour.
b. According to s.41 the defence cannot adduce evidence or ask the complainant
about their sexual behaviour without the leave of the court.
c. According to s.41 the prosecution cannot adduce evidence or ask the complainant
about their sexual behaviour without the leave of the court.
Question 3
In s.41(3)(c), the evidence that the defence wishes to adduce must have taken place at
or around the same time as the events charged.
a. True.
b. False.
Question 4
According to which decision of the ECtHR do principles of fair trial require that in
appropriate cases the interests of the defence are balanced against those of witnesses
or victims called upon to testify?
a. Doorson v Netherlands (1996) App No 20524/92.
b. Mapel v Netherlands (1996) App No 20524/92.
c. Armright v Netherlands (1996) App No 20524/92.
Question 5
Which of the following broadened the judicial discretion to admit evidence of a
complainant’s sexual history under s.41 of the Youth Justice and Criminal Evidence Act
1999?
a. Bahador [2005] EWCA Crim 396.
b. A (No 2) [2001] UKHL 25.
c. C [1993] 3 AC 22.
Question 6
What are the discredited ‘twin myths’ identified in the Canadian case of Seaboyer (1991)
83 DLR (4th) 193, 258, 278c and referred to in A (No 2) [2001] UKHL 25?
a. That women who readily engage in sexual intercourse are more likely to be raped
and less likely to report it.
b. That ‘unchaste’ women are more likely to consent to intercourse and less likely to
tell the truth.
c. That women who have engaged in sexual intercourse with a particular man are
likely to do so again, but unlikely to report it.

Question 1
‘As a result of the House of Lords’ judgment in A (No 2) the provisions relating to the
admissibility of sexual history evidence in the Youth Justice and Criminal Evidence
Act 1999 are doomed to failure.’
Discuss.
Question 2
Dave is to stand trial for the rape of Charlotte at a party in December 2018. Dave
admits sexual intercourse but claims that Charlotte consented to it. Dave claims
that he and Charlotte had met on one previous occasion, in July 2018, at a mutual
friend’s party. Dave claims they had sexual intercourse on that occasion. Dave also
claims that, two hours before the alleged rape in December 2018, Charlotte had,
immediately on arriving at the party, approached Ed and kissed him on the lips,
saying: ‘I know we’ve never really spoken, but did you know I’ve always fancied
you? Maybe it’s time we did something about it.’ Dave claims that Charlotte
fabricated the allegation against him because she feared that Ed, who is now her
boyfriend, would find out that she had sexual intercourse with Dave on the same
night she had told Ed she was attracted to him.
In a separate case, Alfred and John are due to stand trial for raping Isabelle at a
party in October 2018. According to Isabelle, Alfred held her down while John raped
her and then John held her down while Alfred raped her. Alfred and John admit that
the sexual intercourse took place but claim that Isabelle consented to it. They claim
that Isabelle fabricated the allegation when she found out people were talking
about her having had sex with two men at the same time at the party. Alfred claims
that he has had sexual intercourse with Isabelle on approximately eight occasions
between January and October 2018. Alfred and John both claim that at a party in July
2018 Isabelle went to the bedroom with Alfred and John and had sex with both of
them in succession.
Discuss the evidential issues arising in both trials.

Question 1
You need to identify the reasons behind the introduction of s.41 of the YJCEA 1999 and
explain the decision in A (No 2) and its potential implications for the application of s.41.
Use examples from the cases decided since A (No 2) to support your arguments. Strong
candidates will refer to the arguments and examples provided in the Further reading.
Question 2
The first case: A (No 2) was concerned with the relevance of the evidence to the
defence of actual consent, not the relevance of sexual history evidence to a
defendant’s reasonable belief in consent. Dave’s defence in this case is actual consent.
You need to demonstrate a sound understanding of the decision in A (No 2) and apply
its dicta to the question of whether the defence could adduce evidence or cross-
examine Charlotte about her previous sexual intercourse with the defendant in July
2018 under s.41(3)(c). In relation to Charlotte’s propositioning of Ed, might leave be
given under s.41(3)(a)? Is it relevant to her motive for fabrication? You could mention
the case of Martin here as well as Lord Hope’s examples in A (No 2). Might leave be
granted under s.41(3)(b)? As well as mentioning the relevant dicta in A (No 2) you could
mention the case of Mukadi.
The second case: you should discuss the application of A (No 2) and R when considering
whether the defence could adduce evidence or cross-examine Isabelle about her
previous sexual intercourse with both defendants.
If you have time, it is a good idea to add a few sentences of evaluation of the legal
issues you have discussed. How satisfactory do you think the likely outcome is?
Notes
8 Character evidence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8.1 Good and bad character in civil proceedings . . . . . . . . . . . . . . . 89
8.2 Evidence of a defendant’s good character in criminal trials . . . . . . . . 89
8.3 Evidence of bad character in criminal trials . . . . . . . . . . . . . . . . 91
8.4 Bad character of non-defendants . . . . . . . . . . . . . . . . . . . . 101
8.5 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Introduction
In this chapter we will examine the circumstances in which evidence of a party’s
character will be admitted in the proceedings.
In civil cases the admissibility of bad character evidence is primarily governed by the
test of relevance.
Part II of the Criminal Justice Act 2003 (CJA 2003) instituted radical changes to the
admissibility of bad character evidence in criminal proceedings. The effect of these
provisions means that non-defendants are better protected from attacks on their
character than previously, where the court had little power to prevent wide-ranging
courtroom attacks on a witness’s credibility. In relation to a defendant’s bad character,
such evidence now plays a greater part in the investigation and prosecution of cases,
and may form an essential part of the evidence against a defendant. In Chopra [2007]
1 Cr App R 16, Hughes LJ noted: ‘The important change is that whereas previously
evidence of the defendant’s propensity to offend in the manner now charged was
prima facie inadmissible, now it is prima facie admissible.’ The bad character provisions
of the CJA 1993 are complex as well as controversial; you will need to take time to read
them carefully.
Although the CJA 2003 sought to provide a comprehensive statement of the law on
bad character evidence, it has been substantially elaborated upon by a wealth of case
law.
The law on good character is relatively straightforward.
Core texts
¢ Choo, Chapter 10 ‘Character evidence’.
¢ Durston, Chapter 5 ‘Character evidence’.
Essential reading
¢ Sections 98–112 of the Criminal Justice Act 2003.
Learning outcomes
u show basic knowledge of good and bad character in civil proceedings
u explain and be able to apply the two limbs of a Vye direction
u explain the circumstances in which a judge can and cannot dispense with the Vye
directions
u explain what is meant by bad character in Part 11, Chapter 1 of the CJA 2003
explain when evidence of a defendant’s bad character can be adduced under the
CJA 2003
u show knowledge of jury directions on the defendant’s bad character
u explain when evidence of a non-defendant’s bad character can be adduced
under the CJA 2003
u apply the law in a problem scenario
u critically evaluate the law.
Evidence 8 Character evidence page 89
8.1 Good and bad character in civil proceedings
Essential reading
¢ Case: O’Brien v Chief Constable of South Wales Police [2005] UKHL 26.
Generally speaking, the good character of a party to civil proceedings is not admissible.
If a party has their credibility attacked by an unwarranted aspersion on their character,
they can call evidence of their good character to rebut the allegation.
In O’Brien v Chief Constable of South Wales Police [2005] UKHL 36 the House of Lords
gave thorough consideration to the issue of bad character evidence in civil cases.
You should familiarise yourself with the two-stage test of admissibility laid down in
this case. Note in relation to criminal proceedings it was suggested, obiter, that the
CJA 2003 had preserved the common law requirement of enhanced probative value
in relation to ‘similar fact evidence’, but this view was rejected in Weir [2006] 2 All
ER 570, CA, in which it was held that the common law test of ‘striking similarity’ had
been made obsolete by the CJA 2003, and that, where evidence of the defendant’s bad
character was relevant to an important matter in issue between the defendant and
the prosecution, it was admissible subject only to the discretion given to the court by
s.101(3).
Activity 8.1
a. Write down the two-stage test of admissibility set out in O’Brien v Chief Constable
of South Wales Police [2005] UKHL 26.
b. Make a list of the factors that could be taken into account in the second stage of
the test.
Further reading
¢ Ho, H.L. ‘Similar facts in civil cases’ (2006) 26 OJLS 131.
¢ Munday, R. ‘Case management, similar fact evidence in civil cases, and a divided
law of evidence’ (2006) 10 IJEP 81.

u show basic knowledge of good and bad character in civil proceedings.
8.2 Evidence of a defendant’s good character in criminal trials
Core texts
¢ Choo, Chapter 10 ‘Character evidence’, Sections 3.1 ‘The defendant: putting
character in issue’ and 3.2 ‘The relevance of evidence of the defendant’s good
character’.
¢ Durston, Chapter 5 ‘Character evidence’, Section 2 ‘Defendant good character

evidence in criminal cases’. (Note that Durston’s discussion of good character
directions is out of date as it does not include the recent case of Hunter (2015).)
Essential reading
¢ Monaghan, N. ‘Reconceptualising good character’ (2015) 19(3) IJEP 190.
¢ Cases: Hunter (Nigel) [2015] EWCA Crim 631, [2015] 2 Cr App R 9; Vye (1993) 97 Cr
App R 134; Aziz [1996] AC 41; Campbell [2010] UKPC 26, [2011] 2 WLR 983.
You will not be expected to know the general rules governing the admissibility and
presentation of evidence of a defendant’s (or witness’s) good character in criminal
proceedings. The focus in this chapter is on (1) good character directions (in this section),
and (2) the potential consequences of a defendant creating a ‘false impression’ of their
good character, as dealt with by gateway (f) of the CJA 2003 (see below).
If a defendant is of good character, it is mandatory for the judge to give a good
character direction to the jury. In Vye [1993] WLR 471 the Court of Appeal specified
the two limbs of a good character direction. The first limb direction concerns the
relevance of the defendant’s good character to credibility and is only to be given
where the defendant has testified at trial or made pre-trial exculpatory statements.
The second limb direction concerns propensity and deals with the relevance of good
character to the question of whether the defendant was likely to have behaved as
alleged by the prosecution. The second limb direction is to be given in all cases where
the defendant is of good character.
Whether a defendant is of good character was discussed in depth in the House of

Lords’ decision of Aziz [1996] AC 41 and recently received important clarification
in Hunter [2015] EWCA Crim 631, 2 Cr App R 9, where the Court of Appeal took the
opportunity to conduct a comprehensive review of the law in light of the wider
definition given to ‘bad character’ under the CJA 2003 (see below). Monaghan, in
her case comment on Hunter, suggests that the new rules had been manipulated by
defence counsel to pressure judges to give a ‘modified’ Vye direction at risk of facing
the Court of Appeal. (For background on ‘modified’ Vye directions’, see Durston on
‘blemished defendants’.) Hunter concluded that the principles of good character had
been extended too far in appeals decided since Vye and Aziz, so that defendants with
bad criminal records or otherwise not of good character were successfully claiming
entitlement to such directions.
Hunter addressed this problematic situation by reconceptualising the scope of

good character directions and categorising defendants into those of ‘absolute good
character’, ‘effective good character’ and ‘bad character’. Where a defendant is of
absolute good character or effective good character, they are entitled to a good
character direction as of right. However, the judge has discretion to determine
whether a defendant is of effective good character. Where a defendant is of bad
character, it is entirely at the judge’s discretion whether to give a good character
direction and in what form.
The Court of Appeal clearly intended Hunter to be the leading authority on the nature
and extent of good character directions. You are therefore recommended to read the
case in full and the case comment by Monaghan.
The importance of good character directions is nicely illustrated in Campbell [2010]

UKPC 26, [2011] 2 WLR 983. The case against Campbell (that he had murdered a police
officer) relied on one witness’s identification of him as the perpetrator. Campbell
denied any involvement. The Privy Council stated that ‘[t]he absence of a good
character direction…deprived [Campbell] of a benefit in precisely the kind of case
where such a direction must be regarded as being of greatest potential significance’
(per Lord Mance, at [45]).
1. What, according to Vye (1993) 97 Cr App R 134, are the two limbs of the direction
on a defendant’s good character?
2. What, according to Hunter [2015] EWCA Crim 631, does ‘absolute good character’
mean and what is a defendant who is of absolute good character entitled to?
3. What, according to Hunter [2015] EWCA Crim 631, does ‘effective good character’
mean and what factors will a judge consider in deciding whether a defendant is
of effective good character?
4. Are there any circumstances in which a defendant of bad character may receive
a good character direction after Hunter?
Activity 8.2
In Aziz [1996] AC 41 Lord Steyn said:
…a judge should never be compelled to give meaningless or absurd directions, and cases
occur from time to time where a defendant, who has no previous convictions, is shown
beyond doubt to have been guilty of serious criminal behaviour similar to the offence
charged in the indictment. A sensible criminal justice system should not compel a judge
to go through the charade of giving directions in accordance with Vye in a case where the
defendant’s claim to good character is spurious.
a. What hypothetical example did Lord Steyn have in mind in making this observation?
b. Had the development of law prior to Hunter led to the courts having to give
‘meaningless or absurd’ good character directions?

directions.
8.3 Evidence of bad character in criminal trials
Core texts
¢ Choo, Chapter 10 ‘Character evidence’, Section 3.3 ‘Bad character’.
¢ Durston, Chapter 5 ‘Character evidence’, Section 3 ‘Defendant bad character

evidence in criminal cases’.
8.3.1 Definition of bad character
Core texts
¢ Choo, Chapter 10 ‘Character evidence’, Section 3.3.2 ‘The Criminal Justice Act
2003’ including Section 3.3.2.1 ‘Evidence of bad character’.
¢ Durston, Chapter 5 ‘Character evidence’, Section 3 ‘Defendant bad character

evidence in criminal cases’ up to the end of ‘Part of the offence itself’.
Essential reading
¢ Sections 98 and 112(1) of the Criminal Justice Act 2003.
Bad character was not defined at common law but had a potentially wide scope,
focused largely on reputation. Statutory provisions in respect to defendants focused
on evidence of previous offending.
The CJA 2003 provides a new definition of bad character that includes past convictions
but goes far wider. The definition applies to both defendants and non-defendants.
Section 98 of the CJA 2003 defines evidence of a person’s ‘bad character’ ‘for the
purposes of this Act’ as ‘evidence of, or of a disposition towards, misconduct on his part’.
‘Misconduct’ is defined in s.112(1) as ‘the commission of an offence or other

reprehensible behaviour’. The Explanatory Notes to the CJA 2003 suggest that the
definition of misconduct in s.112(1) is intended to be a broad one.
Renda [2005] EWCA Crim 2826, [2006] 1 WLR 2948 clarified that in ordinary language
the term ‘reprehensible’ connotes some element of ‘culpability or blameworthiness’.
In Scott [2009] EWCA Crim 2457 the court had to consider whether ‘irritating and
upsetting’ behaviour by a non-defendant was ‘reprehensible’ and decided that it
was not. In McKenzie [2008] EWCA Crim 758 the defendant’s aggressive and impatient
driving (although no relevant convictions) was recognised as reprehensible behaviour;
Norris [2013] EWCA Crim 712 determined that a DVD showing the defendant and his
friends displaying racist and violent behaviour constituted ‘reprehensible behaviour’.
In other cases, it has been decided that a defendant’s previous interactions with the
criminal justice system short of past convictions fall under this widened category of
misconduct/reprehensible behaviour: (i) receiving a caution (which depends on an
admission of guilt) (Weir [2005] EWCA Crim 2866, [2006] 1 WLR 1885); (ii) behaviour
that was the subject of an acquittal in a previous trial (Edwards [2005] EWCA Crim
3244, [2006] 1 WLR 1524 (this follows earlier law: Z [2000] 3 All ER 385; the CJA 2003
Explanatory Notes advise that such evidence would be admissible under the CJA 2003).
Evidence that falls within the terms of the CJA 2003 definition of bad character is
governed by the CJA 2003 admissibility schemes for defendants and non-defendants
as laid down in ss.101 and 100 respectively (see below). However, it is important to
understand that behaviour that falls outside the CJA 2003 definition of bad character is
not therefore automatically inadmissible: on the contrary, it is potentially admissible
at common law so long as it is relevant. In Manister [2005] EWCA Crim 2866 (reported
together with Weir) the defendant was charged with sexual offences when he was 39
and the complainant was 13 years old. Evidence that when he was aged 34 he had a
sexual relationship with a different girl aged 16 was not reprehensible behaviour and
so was not governed by the CJA 2003 admissibility scheme. However, it was relevant
and admissible as it showed he had a sexual interest in young girls. Fox (Charles
Frederick) [2009] EWCA Crim 653 is a similar case concerning fantasies about under-
aged girls recorded in the defendant’s diary. For an interesting case where evidence
concerning a non-defendant was deemed not to be bad character evidence and was
also excluded at common law, see the analysis of Scott [2009] Crim 2457 below. Towsey
[2019] EWCA Crim 63 provides both common and unusual examples of bad character
evidence and will be useful for you to read.
Scope of exclusion under s.98(a) or (b)

Section 98 specifies that, where potentially bad character evidence (a) has to do with
the alleged facts of the offence with which the defendant is charged, or (b) is evidence
of misconduct in connection with the investigation or prosecution of that offence,
then it is automatically admissible without any need to apply for permission under any
of the gateways.
The meaning of the phrase ‘has to do with the alleged facts of the offence’ has
been explored in McNeill [2007] EWCA Crim 2927 and Tirnaveanu [2007] EWCA Crim
1239. While Sule [2012] EWCA Crim 1130 determined that there was not necessarily a
temporal limitation, the more recent case of Sullivan [2015] EWCA Crim 1565 curbs
temporal (and spatial) over-stretching.
Further reading
¢ Munday, Chapter 7 ‘Evidence of the defendant’s bad character’, Section I ‘The
admission of evidence of a defendant’s bad character in criminal cases’, ‘What
actually constitutes evidence of “bad character”’ (available on the VLE).
¢ Cases: Scott [2009] EWCA Crim 2457; Fox (Charles Frederick) [2009] EWCA Crim
653; Manister [2005] EWCA Crim 2866; Z [2000] 3 All ER 385; Ball [2005] EWCA Crim
2826.
Points to note
u Convictions that are ‘spent’ for most purposes under the Rehabilitation of
Offenders Act 1975 may still be admissible under the CJA 2003 provisions
concerning both defendants and non-defendants.
u Section 109 of the CJA 2003 (assumption of truth) applies when the court is
considering admissibility (but note s.109(2)). See s.74(3) of the Police and Criminal
Evidence Act 1984 (PACE 1984) in respect to past convictions. The defendant (or non-
defendant as the case may be) is free to contest the truth of such evidence at trial.
Other miscellaneous provisions under the CJA 2003 you should be aware of:
u s.107 (stopping the case when evidence is contaminated)
u s.108 (offences committed by the defendant when a child)

u s.110 (court’s duty to give reasons for rulings)
u s.112(3): ‘Nothing in this Chapter affects the exclusion of evidence…under section 41

of the Youth Justice and Criminal Evidence Act 1999’.
Reminder of learning outcome

u explain what is meant by bad character in Part 11, Chapter 1 of the CJA 2003.
8.3.2 Bad character of the defendant: admissibility under the Criminal

Justice Act 2003 ‘gateways’
Core texts
¢ Choo, Chapter 10 ‘Character evidence’, Section 3.3.2.2 ‘Defendants: section 101’.
¢ Durston, Chapter 5 ‘Character evidence’, Section 3 from ‘The seven gateways for
bad character evidence’ to the end of Section 3.
Essential reading
¢ These cases should be read in full: Hanson [2005] 1 WLR 3169; Highton [2005]
1 WLR 3472; Campbell [2007] 1 WLR 2798; Renda [2005] EWCA Crim 2826; Singh
[2007] EWCA Crim 2140.
Section 101(1) provides seven ‘gateways’ through which evidence of a defendant’s bad
character can be admitted. Two of these gateways are when:
1. all parties to the proceedings agree to the evidence being admissible – s.101(1)(a)
2. the evidence is adduced by the defendant themselves or is given in answer to a

question asked by the defendant in cross-examination and intended to elicit the
evidence – s.101(1)(b).
Sections 101(1)(a) and (b) are unlikely to give rise to difficulty, as admissibility is
non-contentious. You might note the significance of s.101(1)(b) in the context of good
character directions (see above).
The other five gateways are defined in terms of how the evidence of bad character is
relevant. These are when:
1. it is important explanatory evidence – s.101(1)(c) – gateway (c)
2. it is relevant to an important matter in issue between defendant and prosecution –

s.101(1)(d) – gateway (d)
3. it has substantial probative value in relation to an important matter in issue

between defendant and co-defendant – s.101(1)(e) – gateway (e)
4. it corrects a false impression given by the defendant – s.101(1)(f) – gateway (f)
5. it counters the defendant’s attack on another person – s.101(1)(g) – gateway (g).
Gateways (c), (d) (f) and (g) are the primary focus here.
Safeguards: With respect to gateways (d) and (g), the court has exclusionary
discretion under s.101(3):‘The court must not admit evidence under subsection (1)
(d) or (g) if, on an application by the defendant to exclude it, it appears to the court
that the admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it.’ With respect to gateway (d),
only s.103(3) allows the exclusion of otherwise admissible evidence where it would be
‘unjust’ to allow it. You should familiarise yourself with the details of these sections.
Also look at s.101(4) relating fairness to lapse of time.
With respect to all gateways, s.78(1) of PACE 1984 is available, although it is weaker
than s.101(3) of the CJA 2003: compare ‘must not admit’ to ‘may not admit’. In
Chrysostomou [2010] EWCA Crim 1403 the Court of Appeal held in respect to s.101(3)
that bad character evidence was wrongfully admitted and was ‘prejudicial’ as it ‘had
no relevance other than to blacken the general character of the appellant in the eyes
of the jury and, therefore, dent the credibility of his evidence generally’. The case of
Towsey [2019] EWCA Crim 63 provides both common and unusual examples of bad
character evidence. It also makes it clear that bad character evidence can consist of
evidence of a stated future intent.
Eye on relevance: The gateways specify the basis of relevance on which bad character
evidence concerning the defendant may be admitted. However, once admitted, the
evidence may be considered relevant to issues other than its gateway terms (Highton
[2005] 1 WLR 3472). This is for the jury to decide, as directed by the judge. (See Section
8.3.2.7 for further discussion of Highton.)
8.3.2.1 Important explanatory evidence – gateway (c)

Section 101(1)(c) is available only to the prosecution. It should be read in conjunction
with s.102. In Pronick [2006] EWCA Crim 2517 the appellant was convicted of the
attempted rape of his partner. The complainant’s evidence relating to a previous
conviction for assault on her and (non-charged) rape on her was admitted. The Court
of Appeal stated that ‘unless the complainant was allowed to give her account of the
nature of the relationship, the jury would not be able to make a proper assessment of
the respective evidence of the two protagonists. It was accordingly necessary material
for the jury’s consideration, and its importance for the jury was likely to be substantial.’
Davis [2008] EWCA Crim 1156 distinguishes: (1) where bad character evidence is
explanatory in respect to the central issues in the trial (as in Pronick) and (2) where
revealing bad character may be unavoidable in order to make contextual sense or add
probative value to a secondary issue such as identification. Both are legitimate under
this gateway. The second type can be seen in Chohan (reported together with Edwards
[2006] 1 Cr App R 3) where a prosecution eyewitness identification witness in a robbery
case was confident in recognising the defendant because she frequently bought drugs
from him.
Gateway (c) should not be used as a substitute for propensity relevance under
gateway (d), as repeatedly emphasised by the Court of Appeal (Davis [2008] EWCA
Crim 1156; D(N) [2011] EWCA Crim 1474, [2013] 1 WLR 676; Lee [2012] EWCA Crim 316.
See also the Supreme Court in Mitchell [2016] UKSC 55, considering analogous bad
character provisions of the Criminal Justice (Evidence) (Northern Ireland) Order 2004:
‘A case which is truly one of propensity cannot and must not be dressed up as a case
of important explanatory evidence.’ In Davis the Court of Appeal pointed out that
this would have the effect of evading the safeguards attached to gateway (d) but not
gateway (c), specifically that s.101(4) requires a court dealing with gateway (d) to
consider the effect on the fairness of the proceedings of any lapse of time between
the matters relied on as evidence of bad character and the date of the current offence.
This consideration does not apply to gateway (c).
8.3.2.2 Relevant to an important matter in issue between the defendant and the
prosecution – gateway (d)
Section 101(1)(d) is available only to the prosecution. It should be read in conjunction
with s.103. Section 112(1) states that ‘important matter’ means a matter of substantial
importance in the context of the case as a whole. It is worth taking time to read these
provisions carefully. Note also the limitations imposed by s.101(3) and (4), and s.103(3),
and the scope that these provisions may give, in addition to the common law, for
arguments based on a comparison of prejudicial and probative value.
‘Matters in issue’ includes propensity to commit offences of the kind with which the
defendant is charged, and propensity to be untruthful. Note that there may also be other
matters in issue between the defendant and the prosecution as well as propensity.
(i) Propensity to commit offences of the kind charged (s.103(1)(a))
Guidelines on the use of bad character evidence (specifically past convictions) were
laid down by the Court of Appeal in Hanson [2005] 1 WLR 3169. On this occasion
the Court gave judgment in a number of conjoined appeals and made general
observations about the way in which s.101 should be applied. Those relating to
gateway (d) were as follows:
1. Where propensity to commit the offence is relied on as the basis for admitting
evidence of a defendant’s bad character under s.101(1)(d), there are essentially
three questions to be considered.
u Does the history of convictions establish a propensity to commit offences of

the kind charged?
u Does that propensity make it more likely that the defendant committed the
offence charged?
u Is it unjust to rely on the convictions and will the proceedings be unfair if they
are admitted? (See ss.103(3) and 101(3).)
The Court of Appeal in Hanson was critical of the offence categories in s.103(2)(b)
(these are categories defined by order of the Secretary of State. To date, only two
such categories have been laid down: offences in the theft category and sexual
offences in respect to persons under the age of 16). Hanson saw these as too broad
and not necessarily relevant. The fact that previous convictions are for offences of
the same description or category does not automatically mean that they should be
admitted. The Court of Appeal in Tully and Wood (2007) 171 JP 25 reflects Hanson. The
appellant had been convicted of the robbery of a taxi driver. His multiple previous
convictions for property (theft) offences were admitted at trial as evidence of a
propensity to acquire other people’s property by unlawful means. The Court of
Appeal held that such a propensity would not have made it more likely that the
defendants had committed the instant offence of robbery, stating:
...such evidence had little probative force. There are a great many people who have
a propensity to acquire other people’s property by one means or another. On the
other hand, previous convictions for robbery would be much more probative and a
conviction for robbing somebody using a knife to reinforce a threat of violence would
increase the probative force…the more similar the circumstances of the past offences,
to the present allegation, the greater the probative force.
Johnson (Chad) [2009] 2 Cr App R 7 shows that propensity can be established by

convictions that are not of the same description or category as the offence for
which a defendant is being tried.
2. There is no minimum number of events necessary to demonstrate propensity.
A single previous conviction for an offence of the same description or category

will rarely show propensity but it may do so where, for example, it shows a
tendency to unusual behaviour, such as child molestation or arson, or displays a
distinctive modus operandi. Similarity with the offence charged is an important
consideration. Although a single previous conviction can be sufficient to establish
propensity, great care must be exercised before admitting it (McDonald [2007]
EWCA Crim 1194). Nonetheless, the Court of Appeal has frequently confirmed that
single previous convictions were correctly admitted as relevant to propensity:
Brown [2011] EWCA Crim 1636; Kamara [2011] EWCA Crim 1146; Brown [2012] EWCA
Crim 773; Sullivan [2013] EWCA Crim 43; Bowman and Lennon [2014] EWCA Crim 716,
and in two cases of murder: Glenn and Wright [2006] EWCA Crim 3236 and Jackson
[2011] EWCA Crim 1870.
3. When considering what is ‘just’ under s.103(3), and the ‘fairness of the proceedings’
under s.101(3), the judge may take into consideration the degree of similarity
between the previous convictions and the offence charged, although ‘striking
similarity’ (the common law test) is not an essential requirement for admissibility.
The judge may also take into account the respective gravity of the past and present
offences.
4. The judge 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.’
Croft [2013] EWCA Crim 1886 affirmed that bad character evidence ought not to be
adduced under gateway (d) merely to bolster a weak prosecution case. However, in
Bowman and Lennon [2014] EWCA Crim 716, it was held that the prosecution need not
first have established a prima facie case.
The age of a previous conviction may be a relevant consideration in deciding whether

to admit it, but even a spent conviction can be admitted to show propensity. (For an
example of a case where a conviction was quashed because the trial judge failed to
take into consideration, as required by s.101(4), the time that had elapsed between the
previous conviction and the current offence, see Dhooper [2008] EWCA Crim 2892. In
this decision the Court of Appeal said that lapse of time has to be considered from two
perspectives: (i) the effect of the passage of time on the probative value of the earlier
offence; (ii) how difficult it is likely to be for a defendant to explain the circumstances
of the previous offence in view of the time that has elapsed.)
The question for the judge in deciding admissibility under gateway (d) is whether
the evidence is capable of establishing the relevant propensity. It is for the jury to
decide whether it actually does so (Chopra [2007] 1 Cr App R 16 and Brima [2007] 1 Cr
App R 24). The Court of Appeal will not usually intervene to vary a trial judge’s ruling
on admissibility under this gateway (Larkin [2016] EWCA Crim 170), but it will do so if
a judge has made an error of judgement as to the ability of prior events to establish
propensity such that the decision is plainly wrong. In M [2006] EWCA Crim 3408, where
the judge had admitted evidence of a single offence of possessing a sawn-off shotgun
20 years earlier, the Court of Appeal ruled that he had erred as this was incapable
of establishing a propensity to commit an offence of the kind charged, namely
possession of a firearm with intent to cause fear of violence.
Propensity to commit offences of the kind with which the defendant is charged is as
important where the defence is a complete denial of what is alleged as where the
defendant gives an innocent explanation for actions which they admit (Wilkinson
[2006] EWCA Crim 1332).
For a rare example of the Court of Appeal setting aside a conviction on the ground
that the trial judge should have excluded evidence of a prior conviction because of
its prejudicial effect, see Benabbou [2012] EWCA Crim 1256 (the probative value of a
conviction for rape in establishing a propensity to commit offences of sexual assault
was limited because of dissimilarities between the offences, yet the prejudicial effect
was such as to distract the jury from, or even blind them to, the issues; and it would be
wrong to approach any case on the basis that a single rape would necessarily attract
the description of unusual behaviour of the kind referred to in Hanson).
Propensity evidence need not be limited to past convictions or other evidence related
to past interactions with the criminal justice system. In Derek Barron [2010] EWCA Crim
2950 the appellant was accused of murdering his former wife after she had formed a
relationship with another man. He had a history of obsessive sexual jealousy towards
former partners after they had formed fresh relationships, stalking and assaulting
them. The Court of Appeal upheld the trial judge’s decision to allow evidence of this
behaviour, pursuant to s.101(1)(d), as indicative of propensity.
In cases using gateway (d) it is for the judge to consider whether the bad character
relied upon is sufficiently relevant to justify its admission. Note the way in which
s.101(1)(d) differs from the provisions relating to the bad character of non-defendants
and co-defendants, and also the way in which it differs from the recommendations of
the Law Commission (Law Com No. 273, para.11.46).
(ii) Propensity to be untruthful (s.103(1)(b))
Hanson, in a consideration of gateway (d) and its companion provision, s.103, held
that not all previous convictions, even convictions for ‘crimes of dishonesty’, show ‘a
propensity to be untruthful’ for the purposes of s.103(1)(b). Previous convictions are
likely to show such a propensity only where: (1) the earlier trials had been contested
and the defendant had given evidence that the jury must have disbelieved, or (2)
the way in which the previous offences were committed showed a propensity to be
untruthful (for example, by making false representations).
Going beyond Hanson, in Campbell [2007] 1 WLR 2798 the Court of Appeal said that the
only circumstance in which there is likely to be an ‘important’ issue as to whether a
defendant has a propensity to be untruthful, so as to bring gateway (d) into play, is
where telling lies is an element of the offence charged. Even then, the propensity to
be untruthful is unlikely to be significant unless the past lies were in the context of
committing criminal offences, in which case the evidence would be admissible under
s.103(1)(a) because the previous convictions show a propensity to commit offences of
the kind with which the defendant is currently charged. Mirfield (see Further reading)
argued that Campbell thus in effect made s.103(1)(b) a ‘dead letter’. The implications
of Campbell have not been fully worked out. Belogun [2008] EWCA Crim 2006 provides
examples of where propensity to be untruthful will be an important matter in issue
even where telling lies is not an element of the offence charged.
(iii) Other important matters in issue
See Isichei [2006] EWCA Crim 1815 where the defendant’s propensity to supply cocaine
was relevant to the issue of identification.
In Hay [2017] EWCA Crim 1851 the defendant’s previous conviction for robbery was
admissible under this gateway to counter a defence of innocent association with
the co-defendant. In Eastlake [2007] EWCA Crim 603 bad character evidence was
admissible as relevant to identity.
8.3.2.3 Important matter in issue between defendant and a co-defendant –

gateway (e)
Section 101(1)(e) is available only to a co-defendant. It should be read in conjunction with
s.104. The test under this section requires ‘substantial probative value’ in relation to an
important matter in issue, and is therefore more demanding than the test under s.101(1)
(d). However, once the court is satisfied that these conditions are fulfilled, there is no
power to exclude the evidence. You should note the limitation in s.104(1) on adducing
evidence that a co-defendant has a propensity to be untruthful. Note also the uncertain
state of the law about what is needed to undermine a co-defendant’s defence.
In Musone [2007] 1 WLR 2467 the Court of Appeal affirmed that there is no power under
gateway (e) to exclude admissible evidence, either under the CJA 2003 or under Article
6 of the European Convention on Human Rights.
8.3.2.4 Correcting a false impression – gateway (f)

Section 101(1)(f) is available only to the prosecution. It must be read in conjunction
with s.105. Evidence is admissible under s.101(1)(f) only if it goes no further than
necessary to correct a false impression. This provision replaces the common law rules
on rebuttal of a defendant’s good character evidence.
Note the different ways that a defendant may make ‘an express or implied assertion’ –
including by conduct, for example, by dress – and the circumstances in which such an
assertion may be made in court or out of court. Merely denying guilt does not count as
creating a false impression (Weir [2005] EWCA Crim 2866; D(N) [2011] EWCA Crim 1474).
Renda [2005] EWCA Crim 2826 deals with s.105(3), withdrawal of assertions.
8.3.2.5 The defendant has made an attack on another person’s character –

gateway (g)
Section 101(1)(g) is available only to the prosecution. It should be read together with
s.106. It is important to understand that gateway (g) licenses the admissibility of any
previous conviction or other evidence of bad character of the defendant if an attack
is deemed to have been made. Note s.106(1)(c) on pre-trial interviews and s.106(2)
on what constitutes an attack. However, as with gateway (d), the judge has some
discretion to exclude under s.101(3).
The purpose of gateway (g) is said to be to enable the jury to know from what sort of
source allegations against a witness (especially but not only a complainant) have come
and to enable a jury to know which witness to believe (Singh [2007] EWCA Crim 2140).
This provision serves to protect witnesses from gratuitous attacks on their character.
In Ball [2005] EWCA Crim 2826 the appellant had called the complainant ‘a slag’ in his
interview with the police. This amounted to an attack on another person’s character.
In Nelson [2006] EWCA Crim 3412 the Court of Appeal said, with reference to s.101(3),
that it would usually threaten the fairness of the proceedings to admit evidence of a
defendant’s previous convictions where their attack was on someone who was not a
witness. The Court also said that, although allegations made by a defendant during a
police interview could meet the requirements for gateway (g), evidence would have to
be given of what had been said and that evidence would not be admitted unless it was
relevant. It would be improper for the prosecution to try to get damaging comments
before a jury simply to provide a basis for adducing evidence of previous convictions
under gateway (g).
However, there can be an attack for the purposes of this gateway even though what
is said by the defendant is a necessary part of their defence (Singh); see also Lamaletie
[2008] EWCA Crim 314. Denial of guilt does not amount to an attack but allegations that
police have fabricated evidence does. Williams [2007] EWCA Crim 1951 distinguished
between saying that police had misinterpreted what they saw and saying they had
fabricated evidence, only the latter being an attack under gateway (g).
In his article ‘The Law Commission’s character convictions’ (see Further reading),
Redmayne criticises the admission of evidence under gateway (g) on the basis that its
rationale is not clear or rational: ‘[I]f such attacks are legitimate, defendants should
not pay a price for making them; if they are not, they should not be permitted in the
first place.’
The relevance of the bad character evidence under gateway (g) is said to be the
defendant’s credibility. However, there is no reference under this gateway to
propensity to be untruthful or to substantial probative value, so the restrictions that
operate under gateway (d) are absent (Singh). Nor are there any of the strict relevancy
criteria urged by Hanson (and even more strongly Campbell) in respect to propensity
to be untruthful. In Highton [2005] 1 WLR 3472, the defendant was charged with
kidnapping and theft. Because he accused the complainants of lying, the prosecution
was enabled under gateway (g) to adduce his past convictions for assault and affray
and crimes of dishonesty. The trial judge directed the jury that they were also entitled
to consider these past convictions as relevant to his propensity to commit offences
of the kind with which he was charged. He appealed on the grounds of misdirection.
The Court of Appeal held that the judge had been entitled to make the direction. (See
Section 8.3.2.7 for further discussion of Highton.)
8.3.2.6 The assumption of truth (s.109) and disputed evidence

A further consideration for the exclusion of evidence arises in respect to the assumption
of truth (s.109) that applies when the court is considering admissibility (but note
s.109(2)). It is open to the defendant at trial to contest the truth of any bad character
evidence admitted, even including past convictions. With respect to past convictions,
s.74(3) of PACE 1984 amounts to a rebuttable presumption of truth. Where the bad
character evidence consists of ‘mere’ allegations not documented in trial proceedings
or police cautions, they are more likely to be disputed by the defendant at trial. The
courts are reluctant to engage in ‘satellite litigation’ (see Section 2.4.1). To distract the
jury with collateral issues can affect the fairness of the trial as a whole (McAllister [2009]
1 Cr App R 10 and McKenzie [2008] EWCA Crim 758) and should be considered when
deciding whether to admit contested bad character evidence. In Edwards [2005] EWCA
Crim 3244 (emphasising the need to guard against satellite litigation) the Court of Appeal
stated that ‘[t]he defendant’s protection comes through the judge’s discretion under
s.101(3) or, in an appropriate case, through s.78 of the Police and Criminal Evidence Act’
(at [78]). In Mitchell [2016] UKSC 55, considering parallel legislation in Northern Ireland,
the Court opined that s.101(3) requires the judge to consider actively whether the effect
of admitting the bad character evidence will have such an adverse effect on the fairness
of the trial that it ought to be excluded. Exclusion was preferable because it would be
difficult for its effects to be offset by a direction to the jury.
In Gillespie [2011] All ER (D) 227 (Nov), the Court reiterated the point that evidence of
bad character not supported by convictions may sometimes be properly admitted
despite the dangers of satellite litigation.
8.3.2.7 Directions to the jury
Core text
¢ Choo, Chapter 10 ‘Character evidence’, Section 3 ‘Criminal proceedings’,
‘Directions to the jury’.
Essential reading
¢ Crown Court Compendium (2018) Part I: Section 12-2 ‘Directions
applicable to all CJA section 101(1) gateways’ [also note directions
with respect to specific gateways] www.judiciary.uk/publications/
Where bad character evidence concerning the defendant has been admitted in the
course of the trial, the judge must always direct the jury as to the issue(s) to which
the evidence is and is not potentially relevant. The jury should be reminded that
bad character evidence is merely part of the evidence in the case and does not of
itself prove guilt. The jury should be instructed not to place so much emphasis on
it that the defendant would be unfairly prejudiced. This is especially needed in the
case of propensity evidence (following Hanson). However, if the evidence is in reality
‘hallmark’ evidence and directly relevant to the issue in the case, a warning not to
convict wholly or mainly in reliance upon it would be inappropriate (Crown Court
Compendium (2018) I: Section 12-2, para. 20).
See also the Court of Appeal’s guidance in Campbell on jury directions (discussed in
Choo), notably for recommending very close guidance be given on the relevance of
bad character evidence to the particular facts of the case.
In Leaver [2006] EWCA Crim 2988 the conviction was quashed by the Court of
Appeal because the judge had failed to clarify to the jury that the defendant’s past
conviction for indecent exposure was only relevant to one of the two charges and
also was irrelevant to determining the truthfulness of his statement to the police. On
the charge of rape, it was relevant as it showed he was the sort of person who was
prepared to degrade and insult a woman for his own sexual gratification, but had no
bearing on the other charge (relating to events slightly later on the same occasion
with the same complainant) of causing grievous bodily harm with intent or the
truthfulness of his account to the police.
Here we will concentrate on two issues. The first is the significance of Highton [2005]
1 WLR 3472, where the Court of Appeal said that a distinction must be drawn between
the admissibility of bad character evidence, which depends on getting it through
one of the gateways, and the use to which it can be put once it is admitted. While
the judge directs on potential relevance, it is for the jury to decide on the weight and
value of the evidence in determining the issue of relevance.
Highton involved evidence admitted under gateway (g), which, unlike gateways (c)
and (d), does not have a specified basis of relevance as such (similarly to gateway
(f), although both are taken as relevant to credibility). In Davis [2008] EWCA Crim
1156 the Court of Appeal noted that evidence admitted under the more stringent
conditions of gateway (d) might thereafter be available for more general purposes,
but, of more concern, that evidence admitted under the less stringent gateway (c)
might later be taken as relevant to propensity (gateway (d)). The need to distinguish
properly between evidence of propensity and ‘important explanatory evidence’ was
emphasised again in Lee [2012] EWCA Crim 316. Even where evidence wrongly admitted
as explanatory under gateway (c) might instead have been admitted as evidence of
propensity under gateway (d), any conviction is likely to remain unsafe unless the jury
has been correctly directed and cautioned as to its use as propensity evidence.
In D(N) [2011] EWCA Crim 1474, [2012] 1 Cr App R 97(8) the Court of Appeal emphasised
that the admissibility decision as to the relevant gateway or gateways will normally be
of great help in identifying the way or ways in which the evidence can legitimately be
used subsequently in identifying the issues to which it is relevant.
The second focus here is on what directions should be given where evidence of bad
character is disputed by the defendant. Where the evidence is neither the subject of a
previous conviction (see s.74(3) of PACE 1984) nor related to another count in the same
indictment, it has been held that the jury should be directed that, with respect to each
separate incident, they should decide whether the facts alleged by the prosecution
have been proved to the criminal standard. With respect to any incident not so
proved, the evidence should be put aside and given no significance (Lowe [2007] EWCA
Crim 3047).
Mitchell [2016] UKSC 55 took a different stance. In this case the Supreme Court
considered the bad character provisions of the Criminal Justice (Evidence) (Northern
Ireland) Order 2004, which are largely identical to those of the CJA 2003. In this case,
the defendant admitted to fatally stabbing her partner with a knife but claimed it
had been in lawful self-defence. The prosecution adduced bad character evidence, as
going to propensity to use knives to threaten and attack others, of the defendant’s
involvement in several alleged incidents with knives, including agreed statements
relating to two previous incidents, which the defendant subsequently retracted. There
were no previous convictions. In considering the proper direction to give to a jury, the
question arose whether the jury should be told that they must be satisfied as to the
truth of each such incident individually (as in Lowe) or would it suffice for them to be
satisfied of the defendant’s propensity after considering the evidence as a whole on a
‘rounded evaluation’?
The Supreme Court adopted the latter position. Referring to Nguyen [2008] EWCA Crim
585, 2 Cr App R 9 (a case involving ‘single-act’ propensity evidence), Lord Kerr (giving
the judgment of the court) said:
The proper issue for the jury on the question of propensity in a case such as Nguyen
and the present appeal is whether they are sure that the propensity has been proved. In
Nguyen the only way in which they could be sure was by being convinced that the sole
incident said to show propensity had been proved to the criminal standard. That does not
mean that in cases where there are several instances of misconduct, all tending to show a
propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of
those. The jury is entitled to – and should – consider the evidence about propensity in the
round. There are two interrelated reasons for this. First the improbability of a number of
similar incidents alleged against a defendant being false is a consideration which should
naturally inform a jury’s deliberations on whether propensity has been proved. [43]
Secondly, obvious similarities in various incidents may constitute mutual corroboration

of those incidents. Each incident may thus inform another. The question [...] is whether,
overall, propensity has been proved. [49] …
Decisions about propensity should not be the product of a review of facts about separate
episodes in hermetically sealed compartments. [53]
Further reading
¢ Munday Chapter 7 ‘Evidence of the defendant’s bad character’, ‘Whether or not
to admit evidence of a defendant’s misconduct on other occasions’ (available on
the VLE).
¢ Munday, R. ‘The purposes of gateway (g)’ (2006) Crim LR 300.
¢ Munday, R. ‘Single act propensity’ (2010) 74 J Crim L 127.
¢ Redmayne, M. ‘The relevance of bad character’ (2002) 61 CLJ 684.
¢ Redmayne, M. ‘The Law Commission’s character convictions’ (2002) 6(2) IJEP 71.
¢ Redmayne, M. ‘Recognising propensity’ (2011) 3 Crim LR 177.


u explain when evidence of a defendant’s bad character can be adduced under the
CJA 2003.
u show knowledge of jury directions on the defendant’s bad character.
8.4 Bad character of non-defendants
Core texts
¢ Choo, Chapter 10 ‘Character evidence’, Section 3.3.2.3 ‘Non-defendants: section 100’.
¢ Durston, Chapter 5 ‘Character evidence’, Section 4 ‘Bad character evidence of

non-party witnesses and non-testifying third parties’.
Essential reading
¢ Cases: Renda [2006] 1 WLR 2948; Stephenson [2006] EWCA Crim 2325; Weir and
Others [2006] 1 WLR 1885; Brewster and Cromwell [2010] EWCA Crim 1194, [2010] 2
Cr App R 20; Braithwaite [2010] 2 Cr App R 18; Miller [2010] EWCA Crim 1153; Dizaei
[2013] EWCA Crim 88; Scott [2009] EWCA Crim 2457.
Points to note:
u the wide scope of the term ‘non-defendant’ covered by s.100
u ‘evidence’ in s.100 includes questioning/cross-examination
u the definition of bad character in ss.98 and 112(1) also covers s.100, as does much of
the case law on the meaning of bad character in respect to defendants
u s.98(a) and (b) also apply (where evidence about a non-defendant involves events
that form the subject matter of the charge (Machado [2006] EWCA Crim 1804) or
investigation of the crime)
u where a defendant seeks to adduce evidence of the bad character of a prosecution

witness, the s.101(1) and s.101(3) fairness tests do not apply. Note the potential
relevance of s.101, gateway (g)
u s.112(3): in respect to complainants in sexual offence trials, evidence otherwise

admissible under s.100 is subject to additional admissibility conditions under s.41
of the Youth Justice and Criminal Evidence Act 1999. See also Scott [2009] EWCA
Crim 2457 on prior false complaints and the cases discussed there. (See Activity 8.3.)
Section 100(1) sets out the limited circumstances in which evidence of the bad
character of a person other than the defendant can be given. Such evidence can be
given only if it meets one of three conditions:
1. it is important explanatory evidence
2. it has substantial probative value in relation to a matter in issue in the proceedings,

and that issue is of substantial importance in the context of the case as a whole
3. all parties to the proceedings agree that the evidence should be admitted.
Where reliance is placed on (1) or (2), the leave of the court is required. The judge has
no discretion to exclude evidence that they find passes the relevant tests. However,
little guidance is given as to what principles should govern the grant or refusal of leave.
Important explanatory evidence – s.100(1)(a)
The definition of explanatory evidence is the same as for defendants. Bad character
evidence exposing a witness’s motive can constitute important explanatory evidence
(Miller [2010] EWCA Crim 1153).
Substantial probative value in relation to an issue of substantial importance in the
context of the case as a whole – s.100(1)(b)
Note: Subsection (3) directs the court to have regard to various factors, and to any
others it considers relevant, in assessing whether the value of evidence is ‘substantial’
for the purposes of (b).
Braithwaite [2010] 2 Cr App R 18 nicely illustrates how evidence may be of substantial

importance in the context of the case as a whole but not of sufficient probative value
to be admitted.
R v Hackett [2019] EWCA Crim 983 was a successful appeal against conviction on the
grounds of deficiencies regarding the admission, utilisation and directions given
relating to bad character evidence. It is a short case that will provide a useful recap on
the statutory provisions.
In R v Day [2019] EWCA Crim 935 the defendant relied on Hanson [2005] EWCA Crim
824 to argue that the threshold for admissibility was not met: it was a single offence
committed many years ago. Dismissing the appeal, the Court of Appeal held that the
evidence of the previous conviction demonstrated a very special and distinctive feature
such that the jury could properly conclude that it showed a relevant propensity.
Section 100(1)(b) covers both propensity and credibility. Relevant cases on propensity
include: Bovell and Dowds [2005] EWCA Crim 1091 (critically discussed in Durston); S
(Andrew) [2006] Cr App R 31; and H (2010) 174 JP 203.
However, non-defendants’ bad character evidence is most likely to be admissible

where their honesty as a witness is questioned. After conflicting early decisions
(Stephenson [2006] EWCA Crim 2325 and S (Andrew) [2007] 1 WLR 63), a wide view of
what constitutes ‘substantial probative value’ has been taken; in particular, the scope
for cross-examination about a witness’s general credibility is wider than the scope
for adducing evidence to show a disposition to be untruthful under s.101(1)(d) of
the CJA 2003. See Osbourne (reported with Renda) [2006] 1 WLR 2948. This has been
criticised by Mirfield (see Further reading): ‘if one is persuaded by Lord Phillips CJ’s
view [re ss.101(1)(d) and 103(1)(b) in Campbell] that even a propensity to lie is generally
unlikely to be relevant to an important matter in issue between the defendant and the
prosecution, then there is good reason to apply it elsewhere’.
In Brewster [2010] EWCA Crim 1194, [2010] 2 Cr App R 20 the Court of Appeal held that in
order to have ‘substantial probative value’ within the meaning of s.100(1)(b), evidence
of a witness’s bad character did not have to amount to proof of a lack of credibility
or demonstrate a tendency towards dishonesty or untruthfulness on the part of
the witness; the question was whether the bad character evidence was sufficiently
persuasive to be worthy of consideration by a fair-minded jury in deciding whether the
witness’s evidence was worthy of belief.
However, the test of ‘substantive probative value’ has limited the type of evidence
that may be relied on in respect to non-defendants: allegations and police reports
are rarely to be admitted (Braithwaite [2010] 2 Cr App R 18); Miller [2010] EWCA Crim
1153). Due to the risk of satellite litigation, were the evidence to be admitted, it may be
difficult for the jury to understand the remainder of the evidence. This may diminish
the jury’s understanding of the case as a whole (Dizaei [2013] EWCA Crim 88), and thus
is a legitimate basis of exclusion.
Further reading
¢ Mirfield, P. ‘Character and credibility’ (2009) Crim LR 135.
¢ Stockdale, M., B. Brewisand and A. Jackson ‘Bad character evidence and potential
satellite litigation’ (2013) 77(2) J Crim L 110.
Activity 8.3
This Court of Appeal case of Scott [2009] EWCA Crim 2457 has been selected
for analysis because it deals with a wide number of issues, some concerning
defendants as well as non-defendants. Section 98(a) and (b) is engaged. This is
also an important case dealing with admissibility under common law where such
evidence is deemed not to be of bad character. With respect to non-defendants,
it shows the steps entailed in considering whether evidence is admissible under
s.100(1)(b) and also how evidence concerning non-defendants is potentially subject
to further restrictions in connection with the YJCEA 1999 (see Chapter 7) and how
allegations of false allegation are s.100(1) issues. You should read the judgment
in full and do your best to answer the following questions. Although feedback is
provided at the end of the guide, you will gain a far better understanding if you
genuinely attempt to use the following questions to guide your reading of the case.
It will help if you make a note of your answers in sentence form before reading
the feedback. Also it will be easier if you identify the items of evidence in question
(statements from three witnesses and CRIS (Crime Reporting Information System)
reports), which records complaints made to the police), who the defendant is and
what the charge is – and, of course, who is the non-defendant at the centre of this
case. One helpful feature of this case is that the issues are labelled in headings
(‘Issue one’, etc.).
a. What seven issues were raised in this appeal?
b. On what basis did the Court of Appeal reject the appellant’s submission
concerning s.98(a) and (b) (Issue one)?
c. Did some or all of the evidence in question amount to bad character within the
CJA 2003 definition (Issue two)?
d. Why did the Court of Appeal hold that the non-bad-character evidence in
question was not admissible as relevant at common law? (Discussed under Issue
two.)
e. On what basis did the Court of Appeal hold that some or all of the proposed
evidence did relate to ‘a matter in issue in the proceedings’ for the purposes of
s.100(1)(b) (Issue three) With an eye on relevance: to which ‘matter in issue in
the proceedings’ did this evidence relate?
f. Why did the Court of Appeal decide that the trial judge was wrong to rule that
some of the evidence in question did not have ‘substantial probative value’ in
relation to a matter in issue in the proceedings (Issue four), having regard to
(with respect to both issues) the factors set out in s.100(3) of the CJA 2003 and
any other relevant factors? In respect to Issue four:
i. What error did the Court of Appeal find in the judgment of Dyson LJ in Carr
[2008] EWCA Crim 1283 in respect to residual discretion?
ii. Did the Court of Appeal find that the trial judge was wrong to take into
account concerns about ‘satellite litigation’ in respect to s.100(3)?
g. Why did the Court of Appeal decide that the trial judge was wrong to rule that
some of the evidence in question did not have ‘substantial probative value’ in
respect to a matter of substantial importance in the context of the case as a
whole (Issue five)? Hint: this follows on from (6)(b) above.
h. The Court of Appeal noted that s.41 of the Youth Justice and Criminal Evidence
Act 1999 ‘or related matters’ could impose further restrictions on evidence
otherwise admissible under s.100. Insofar as evidence here concerned alleged
previous false claims of sexual assault:
i. What CJA 2003 provision states the relation between s.100 and s.41 of the
YJCEA 1999?
ii. Are prior alleged false claims of sexual assault or related matters ‘sexual
behaviour’ such as to fall under s.41 of the YJCEA 1999?
iii. What applicable conclusions did the Court of Appeal draw from cases on
prior alleged false claims of sexual assault?
i. What conclusion did the Court of Appeal reach on whether the conviction was
unsafe and on what basis?

u explain when evidence of a non-defendant’s bad character can be adduced
under the CJA 2003.
Essential reading
¢ Mirfield, P. ‘Character and credibility’ (2009) Crim LR 135 (available in Westlaw
via the Online Library).
¢ Redmayne, M. ‘The Law Commission’s character convictions’ (2002) 6(2) IJEP 71

(available in the Online Library).
¢ Tapper, C. ‘The law of evidence and the rule of law’ (2009) 68(1) CLJ 67 (available
in the Online Library).
Is the law on character satisfactory? Some of the questions you might consider under
this heading are: does it further the aims of evidence? Does it help to ensure the
conviction of the guilty and the acquittal of the innocent? Is the law sufficiently clear
for the parties to be able to predict a court’s application of it? Does it help to ensure
only relevant evidence of more probative value than prejudicial effect is admitted
against a defendant?
Once you are sufficiently familiar with the law on bad character in criminal trials, you
will be in a position to critically evaluate it. The Essential and Further reading listed
in this section will be helpful to you in this task. The reading will also deepen your
understanding of the law and enhance your ability to apply it in problem scenarios.
Your analysis need not be on a grand scale. Indeed, focusing on key problem areas has
the advantage of in-depth knowledge, for example, Redmayne’s critique of gateway
(g) in ‘The Law Commission’s character convictions’: ‘[I]f such attacks are legitimate,
defendants should not pay a price for making them; if they are not, they should not be
permitted in the first place.’ In ‘The law of evidence and the rule of law’, Tapper focuses
on the definition of character: ‘It would be hard to find a much vaguer or less technical
provision than the definition of evidence of bad character in s.98(a) of the Criminal
Justice Act 2003.’ You might also like to read his CJA 2003 dedicated article in the Further
reading. Mirfield’s stance on credibility will be partially familiar to you as it has been
briefly discussed above but his article is wider and more penetrating than this. You might
also wish to evaluate the provisions in light of the Law Commission’s Reports.
Further reading
¢ Tapper, C. ‘The Criminal Justice Act 2003: (3) Evidence of bad character’ (2004)
Crim LR 533.
¢ Law Commission Consultation Paper No. 141: ‘Evidence in criminal proceedings:

previous misconduct of a defendant’ (1996).
¢ Law Commission Report 273: ‘Evidence of bad character in criminal proceedings’

(2001), Cm 5257.
Activity 8.4
a. Ian is charged with criminal damage. An important prosecution witness against
him is Jack, a bystander, who says that he ‘saw everything’. Ian says that Jack
is trying to frame him in order to protect someone else. Jack has a number of
previous convictions. Last year he pleaded guilty to a charge of theft. Two years
ago he was convicted of an assault after pleading not guilty. Jack also has a spent
conviction for indecently assaulting a woman at an underground station.
Is the defence likely to be allowed to cross-examine Jack about any of these matters?
b. Ken is charged with wounding his wife, Lily. The prosecution says that he
stabbed her with a kitchen knife during an argument. Ken says that the wound
was the result of an accident, for which he was not to blame. On two occasions
during the last 18 months Ken has been convicted of assaults on Lily. Are these
convictions likely to be admitted to support the case against Ken?
c. Maurice, Norman and Owen are charged with robbery. The prosecution says that
they attacked Peter in a car park outside a public house and that one of them
snatched Peter’s watch from his wrist. Maurice testifies that Peter was drunk
and ‘behaved like a madman’, charging at Norman with a broken bottle and
threatening to kill them all. Maurice says that he and the other defendants acted
to protect themselves and each other, and that the watch must have fallen off
in the struggle. Norman testifies that he had got into his car and was waiting for
the other defendants to come out of the pub. He says that he heard shouting but
could see nothing. Norman has a spent conviction for possession of cocaine with
intent to supply and a recent conviction for causing death by dangerous driving.
Can Norman be cross-examined about either of these convictions by counsel for
Maurice?
d. Quentin is prosecuted for assault. The prosecution says that he hit Richard
during an argument in a nightclub. Three years ago Quentin was convicted
of wounding a member of the public who was taking part in a political
demonstration. This conviction was not relied on as part of the prosecution
case. Quentin gives evidence. During cross-examination by counsel for the
prosecution he becomes excited and shouts: ‘You’re taking liberties! I’ve never
been in trouble with the police before this!’ Advise the prosecution whether
Quentin can be cross-examined about his previous conviction.
e. Sam, who has two previous convictions for handling stolen goods, is prosecuted
for theft from a supermarket. A store detective gives evidence of his movements
over a 10-minute period in the store, which culminated in his taking a packet
of sausages from a display and concealing it in his raincoat. The detective says
that, after doing this, Sam left the store without paying for the sausages and
handed them to a small boy waiting in the street, who ran away and has not
been traced. Sam’s defence is that the store detective is wrong in relation to all
her observations. Can the prosecution cross-examine Sam about his previous
convictions?
Quick quiz
Question 1
The risk that a jury will convict a defendant on the basis that even if they are not
guilty of the offence charged, they deserve punishment on account of their previous
misconduct is often described as which of the following?
a. Reasoning prejudice.
b. Moral prejudice.
c. Misguided prejudice.
Question 2
Which of the following is a correct statement of the law?
a. A single previous conviction for an offence of the same description or category will
often not show propensity of the defendant to commit offences of the kind with
which they are charged.
b. A single previous conviction for an offence of the same description or category will
always suffice to show propensity of the defendant to commit offences of the kind
with which they are charged.
c. A previous conviction must be of the same description or category as the offence

charged to show propensity.
Question 3
Which statutory provision sets out the circumstances in which the bad character of a
witness (i.e. a non-defendant) can be admitted?
a. Section 101 of the CJA 2003.
b. Section 100 of the CJA 2003.
c. Section 105 of the CJA 2003.
Question 4
Which statutory provision must be read in order to understand the concept of
‘important explanatory evidence’ in s.101(1)(c) of the CJA 2003?
a. Section 98 of the CJA 2003.
b. Section 103 of the CJA 2003.
c. Section 102 of the CJA 2003.
Question 5
a. Whenever there is an issue as to whether the defendant’s case is truthful, evidence

can be admitted to show that they have a propensity to be untruthful.
b. The question of whether a defendant has a propensity for being untruthful will
not normally be capable of being described as an important matter in issue for the
purposes of ss.101(1)(d) and 103 of the CJA 2003.
c. The question of whether a defendant has a propensity for being untruthful will
normally be capable of being described as an important matter in issue for the
purposes of ss.101(1)(d) and 103 of the CJA 2003.
a. What is meant by ‘misconduct’ in s.98 of the CJA 2003?
b. What evidence of misconduct is excluded from the definition of bad character

evidence in s.98 of the CJA 2003?
c. When can evidence be given of a non-defendant’s bad character, as defined by

s.98?
d. Which of the ‘gateways’ in s.101 can be used only by the prosecution?
e. What is ‘important explanatory evidence’ for the purposes of s.101(1)(c)?
f. What arguments are available for excluding evidence falling under s.101(1)(c)?
g. What arguments are available for excluding evidence falling under s.101(1)(d)?
h. What arguments are available for excluding evidence falling under s.101(1)(e)?
i. What difficulty is there in deciding whether the nature or conduct of one

defendant’s defence is such as to undermine that of a co-defendant?
j. What problem arises when a defendant with previous convictions gives

evidence that has the effect of showing their character in a good light?
k. What arguments are available for excluding evidence falling under s.101(1)(f)?
l. Why is it difficult to predict whether a defendant will expose themselves to

cross-examination under s.101(1)(g) by references to ‘lying’ on the part of a
prosecution witness?
m. What arguments are available for excluding evidence falling under s.101(1)(g)?

Having completed this chapter and the Essential reading and activities, you should
be able to:
u show basic knowledge of good and bad character in civil proceedings
directions
u explain what is meant by bad character in Part 11, Chapter 1 of the CJA 2003
u explain when evidence of a defendant’s bad character can be adduced under the
CJA 2003
u explain when evidence of a non-defendant’s bad character can be adduced under
the CJA 2003 show knowledge of jury directions on the defendant’s bad character
u show knowledge of jury directions on the defendant’s bad character
u apply the law in a problem scenario
u critically evaluate the law.

Question 1
Quintin, Peter and Oswald are charged with a serious assault on Noel. Noel testifies
that all three came running at him outside a disco in the early hours of the morning,
and, while they punched him, one of them gashed him with a broken bottle. A
police officer, Maurice, testifies that when he had asked Oswald where Quintin
and Peter were, Oswald lied to him by saying that they had gone to France. Quintin
testifies that it was Noel who punched him first, hitting Quintin, and that he,
Quintin, hit back in self-defence. Quintin further denies that he was aware that any
of them had a broken bottle, although he adds: ‘Noel probably had it himself as he
is a nasty man.’ Peter testifies that he, Quintin and Oswald had decided to ‘beat Noel
up’ but that Noel had received the gash in an accident shortly before the incident
outside the disco. Peter refuses to answer a question put to him by the prosecution
as to whether he had a broken bottle with him at the time. Oswald claims that all he
had told Maurice was that he did not know where Quintin and Peter were. Quintin
has a spent conviction for causing grievous bodily harm (GBH) with intent. Peter has
no previous convictions, but he has recently been dismissed from his employment
for sexually harassing female employees. Oswald has a conviction for indecent
assault, which is not yet spent.
Discuss the evidential issues that arise.
Question 2
Antonia is due to stand trial for assaulting Geoff on 9 January 2018. Geoff is the
landlord of Wahoo Bar. Geoff claims that Antonia was drunk when she arrived at
the bar and so Geoff refused to serve her any drinks. Geoff claims that Antonia was
angry at being refused a drink and threw a glass at his head.
When interviewed by the police the following day Antonia said Geoff was a ‘sexist
pig’ but refused to answer any of the questions put to her by the police. At trial,
Antonia will claim that when she arrived at the bar Geoff had told her she looked
like a prostitute and pinched her breast when she ordered a drink. When Antonia
threatened to report him to the police he told her to get out of the bar, which she
did. She denies assaulting him. She will claim that the reason she didn’t mention
this to the police at interview is because she hadn’t expected Geoff to pursue the
allegation and she wanted to put the incident behind her.
Jemima, who works behind the bar, claims that Geoff, her boss, is often rude to
women and has touched her inappropriately on several occasions.
Antonia has one previous conviction for being drunk and disorderly in 2004 (to
which she pleaded guilty) and one previous conviction for theft in 2006 (to which
she had entered a plea of not guilty).
Jemima has one previous conviction for theft.
Discuss the evidential issues arising, adding critical comment where you think the
law is unsatisfactory.

Question 1
Quintin: He has clearly made an attack on Noel’s character and so comes within
s.101(1)(g). There is almost certainly a common law discretion to exclude his previous
conviction for causing GBH with intent; and room for an argument that it should
be excluded under s.101(3). The fact that the conviction is spent will be relevant to
the question of exclusion, as will its similarity to the current offence (because of the
danger of reasoning prejudice). You should consider also the application of s.101(1)(d).
It is not easy to predict whether evidence would be permitted through this gateway.
But you could develop your discussion along the following lines. What is the matter
in issue between defence and prosecution to which the bad character is said to be
relevant? Why is this matter an important one? Does one spent conviction for causing
GBH with intent show a propensity for committing offences of the kind with which
Quintin is charged? Even if admissible, should the evidence be excluded, either under
common law or under ss.101(3) or 103(3) of the CJA 2003?
Peter: Quintin’s defence is undermined by Peter’s evidence of an agreement to

‘beat Noel up’. Section 101(1)(e) would enable Quintin to cross-examine Peter about
his misconduct if it has substantial probative value. (Obviously, the matter in issue
between Quintin and Peter is important.) You need to produce an argument to show
that this test is or is not satisfied – or at least to show that there is doubt about it.
Remember that if the test is satisfied, there is no power to exclude. In addition,
s.101(1)(g) might be available to the prosecution. Is Noel’s account of being cut with a
broken bottle (instead of suffering the injury in an accident) something about which
he could have been mistaken? Or does Peter’s evidence mean that Noel must be giving
a deliberately false account? If s.101(1)(g) applies, consideration will have to be given
to exclusion under s.101(3).
Oswald: The only way to admit evidence of his bad character would be by using
s.101(1)(g), on the basis that the police officer, Maurice, must be fabricating his
evidence, as opposed to making an honest mistake. Section 101(3) would apply, and
you should consider the moral prejudice that might be caused if Oswald’s conviction
were to be revealed.
Note: There are other evidential points arising in this question that have not been
covered.
Question 2
You should consider whether Antonia’s previous conviction for being drunk and
disorderly will be admissible under s.101(1)(a) (Hanson) and whether her previous
conviction for theft will be admissible under s.101(1)(b) given the plea of not guilty
(Hanson and Campbell) and/or whether previous convictions will be admissible under
s.101(1)(g). Section 101(1)(g) will require consideration of s.106 and of whether Antonia
has attacked Geoff’s character by describing him as a ‘sexist pig’ in her interview;
whether Antonia has attacked Geoff’s character in her account of what happened at
the bar; and whether Jemima’s evidence is evidence of Geoff’s bad character (and if
so, its admissibility under s.100). Further issues include whether Jemima’s previous
conviction for theft will be admissible under s.100.
Include some critical comment in your answer on the likely outcomes, which may
draw on the articles by Mirfield, Redmayne and Munday.
Note: There are other evidential points (unrelated to character) arising in this question
that have not been covered.
Additional examination question (no feedback provided)

‘The provisions on bad character evidence in the Criminal Justice Act 2003 fail to
strike the right balance between the rights of an accused, and those of victims and
witnesses.’ Discuss.
9 The rule against hearsay
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
9.1 Basic overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
9.2 Hearsay in the Criminal Justice Act 2003 and the preserved common law
exception for res gestae . . . . . . . . . . . . . . . . . . . . . . . . . 113
9.3 Supplementary safeguard provisions of note . . . . . . . . . . . . . . 121
9.4 The impact of Article 6(3)(d) of the European Convention

on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
9.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Introduction
The hearsay rule is one of the best known common law exclusionary rules. The classic
statement of the rule was made by Cross: ‘a statement other than one made by a
person while giving oral evidence in the proceedings is inadmissible as evidence of
any fact stated’. The principal reasons for the undesirability of hearsay evidence were
that the original statement was not made on oath, and that the person making it was
not available for cross-examination. Hearsay evidence was inadmissible unless it came
within an exception to the rule, of which there were many at common law.
The rule against hearsay has been effectively abolished in civil proceedings. It is
governed by the Civil Evidence Act 1995. We will focus, in this course, on hearsay in
criminal proceedings.
In criminal proceedings the rule against the admissibility of hearsay has been narrowed,
while at the same time the exceptions to the rule expanded, by the Criminal Justice Act
2003 (CJA 2003). The CJA 2003 maintains a general rule whereby ‘a statement not made
in oral evidence in the proceedings’ is inadmissible as ‘evidence of any matter stated’
(s.114(1)). It codifies the rule and contains a number of specific statutory exceptions as
well as preserving a number of common law exceptions to the hearsay rule.
Your first aim should be to get to grips with the scope of the rule against hearsay. This
is a surprisingly difficult task and we will start with a basic overview before looking at
how the rule against hearsay is codified in the CJA 2003.
Your next aim should be to familiarise yourself with the rationales for the rule against
hearsay, and the validity of these rationales. We will then look at the exceptions to
the exclusionary rule provided by the CJA 2003. Finally, we will examine the impact
of Article 6(3)(d) of the European Convention on Human Rights (ECHR) on hearsay
evidence. You should then be in a position to both apply the law in a problem scenario,
and to critically evaluate the law in this area.
It is worth briefly noting the reasons behind the relaxation of the rule against hearsay
in the CJA 2003. The exclusionary rule itself was regarded as unnecessarily inflexible,
particularly in relation to evidence that favoured the defence. Sparks [1964] AC 964
is a good example of how the rule could result in miscarriages of justice. The law on
hearsay, and the numerous exceptions to the exclusionary rule, were widely regarded
as having become ‘absurdly technical’ (Lord Reid in Myers v DPP [1965] AC 1001).
Core texts
¢ Durston, Chapter 6 ‘Hearsay evidence’.
¢ Choo, Chapter 11 ‘Hearsay evidence’.
Essential reading
¢ Munday, Chapter 9 ‘The rule against hearsay’, Section I ‘Hearsay in criminal
cases’, ‘When it is in the interests of justice to admit the statement (s.114(1(d))’
¢ Choo, A. Hearsay and confrontation in criminal trials. (Oxford: Clarendon Press,

1996) [ISBN 9780198258919], ‘The rationales for the rule’ (available on the VLE).
¢ Roberts and Zuckerman, Chapter 9 ‘Hearsay’, Section 9.4(b) ‘Implied assertions

and the logic of hearsay’ (available on the VLE).
¢ Sections 114–26 of the Criminal Justice Act 2003.
¢ Cases: Price v UK [2016] ECHR 15602/07; Riat [2012] EWCA Crim 1509; Twist [2011]
EWCA Crim 1143, see also case comment by Ormerod, D. in (2011) Crim LR 793
(available in Westlaw via the Online Library); Billy Nathan Midmore [2017] EWCA
Crim 533; Horncastle [2010] 2 AC 373; Loveridge [2007] EWCA Crim 1041; Shabir
[2012] EWCA Crim 2564; Al-Khawaja v UK [2011] ECHR 2127; Evans [2010] EWCA Crim
2516; Bailey [2008] EWCA Crim 817; Adams [2007] EWCA Crim 3025; Spence [2011]
EWCA Crim 94; Andrews [1987] AC 281.
Evidence 9 The rule against hearsay page 111
Further reading
¢ Birch, D. ‘Interpreting the new concept of hearsay’ (2010) CLJ 72.
¢ Ormerod, D. ‘Worth the wait?’ (2012) 2 Crim LR 79.
¢ Redmayne, M. in Roberts, P. and J. Hunter Criminal evidence and human rights:

reimagining common law procedural traditions. (Oxford: Hart Publishing, 2012)
[ISBN 9781849464956], ‘Confronting confrontation’ (available on the VLE).
¢ Dennis, I. ‘The right to confront witnesses: meanings, myths and human rights’
(2010) Crim LR 255.
¢ O’Brian, W.E. ‘Confrontation: the defiance of the English courts’ (2011) 15 IJEP 93.
¢ Cases: Sparks [1964] AC 964; Subramaniam v Public Prosecutor [1956] 1 WLR 965;
Kiziltan [2017] EWCA Crim 1461; Kearley [1992] 2 AC 228; Teper [1952] AC 480; Ratten
[1972] AC 378; Leonard (Mark) [2009] EWCA Crim 1251; Elliott [2010] EWCA Crim
2378; Twist [2011] EWCA Crim 1143; Adams [2007] EWCA Crim 3025.
Learning outcomes
u provide a working definition of the rule against hearsay
u give examples of circumstances when evidence would/would not be excluded in
principle by the rule against hearsay
u critically discuss the various reasons that have been given for having a rule
against hearsay
u describe and apply the unavailability exception (s.116)
u describe and apply the preserved common law exceptions (s.118)
u describe and apply the ‘safety-valve’ exception (s.114(1)(d))
u explain what is meant by ‘multiple hearsay’ and describe the circumstances in
which it can be admitted (s.121)
u explain and apply the provisions relating to credibility in s.124
u explain in what circumstances a trial can be stopped under s.125
u describe the general discretions to exclude hearsay evidence contained in or
preserved by s.126
9.1 Basic overview
9.1.1 What is hearsay?
Core text
¢ Durston, Chapter 6 ‘Hearsay evidence’, Sections 6.1 ‘Introduction’, 6.2 ‘Definition
of hearsay’ and 6.3 ‘Implied assertions and the hearsay rule’.
The rule against hearsay excludes an item of evidence only if the purpose of citing
that evidence is to establish the truth of the facts stated. Sometimes a party will
want to adduce something that was said out of court for some reason other than to
establish the truth of what was stated. In that case the statement will not be caught
by the rule against hearsay. Such a statement is sometimes said to be ‘original’
evidence, because what is relevant is not the truth of the statement but the fact
that the statement was made. The hearsay rule, it is sometimes said, is a ‘rule of use’.
What it excludes is not a type of evidence (a statement made out of court) but a use
of that type of evidence (i.e. the use is to prove the truth of a fact stated). A simple
example: suppose there is an issue at trial as to whether a person, X, can speak English.
Witness W is called to testify that she heard X say ‘I went to London yesterday’. That
statement would be admissible to prove that X can speak English. If the issue at trial
were whether X went to London, then the purpose of adducing the statement would
be to prove the truth of the statement; only in the latter case could the evidence be
hearsay. A good example in the case law of the importance of the purpose of adducing
the evidence to determining whether the evidence is hearsay is Subramaniam v Public
Prosecutor [1956] 1 WLR 965. Hearsay is either ‘first-hand’, when it is one step removed
from the person who first made the relevant statement or observation, or ‘multiple’,
when it is more than one step removed from that person. The original observer is
often referred to as ‘the maker of the original statement’ because the observer will
frequently have reported what they saw to someone else by word of mouth. However,
they need not have done so; they might merely have made a written record of it, with
or without an intention of showing or sending it to anyone. If this is the case, their
written record will be first-hand hearsay of those matters to which it refers and which,
ideally, would be the subject of the observer’s own testimony.
Examples
Suppose there is a fight in the street, during which Alec stabs Ben. This is observed by
Charlie.
1. Charlie can give evidence of what he saw; no hearsay problem arises.
2. Now suppose that Charlie goes home and tells Donna, his wife, what he saw. Charlie
is not available at the time of Alec’s trial for stabbing Ben, but Donna is. Donna may
be able to give evidence of what Charlie told her. If so, her evidence will be first-
hand hearsay.
3. Now suppose that after Donna has been told of the incident by Charlie, she repeats
the account to her friend Edwina. If neither Charlie nor Donna is available for Alec’s
trial, it is possible that Edwina could give evidence of what Donna told her. If so,
her evidence would be multiple hearsay. The reason for this is that when Edwina
is giving her evidence, the account of the incident that she gives is two steps
removed from Charlie. (The story has passed via Charlie to Donna – first remove –
and via Donna to Edwina – second remove.)
4. Now suppose that Charlie is away on business when he observes the stabbing,
and gives an account of the incident in a letter to his wife, instead of telling her
by word of mouth. The letter is separated from Charlie by one remove and would
be regarded as first-hand hearsay if it was produced in court as evidence of its
contents because Charlie was unavailable. If Donna destroys the letter after reading
it, she might be able to give evidence of its contents in the absence of Charlie. But
if she does so, her evidence will be multiple hearsay, because the account of the
stabbing will be separated from Charlie by two removes. (The story has passed
from Charlie via the letter – first remove – and then via Donna – second remove.)
Activity 9.1
a. John has been charged with assaulting Darren. John will claim he was acting in
self-defence. He wishes to give evidence that he heard Darren shout ‘You are
the man who killed my mother!’ before raising his fist at John. Would John’s
evidence be hearsay?
b. Make up your own example of a statement that would be caught, in principle, by

the rule against hearsay.
c. Make up your own example of a statement that would not be caught, in

principle, by the rule against hearsay.
No feedback provided to (b) and (c).

9.1.2 Common law justifications for the hearsay rule
Core texts
¢ Durston, Chapter 6 ‘Hearsay evidence’, Section 6.4 ‘Justification for the hearsay
rule’.
¢ Choo, Chapter 11 ‘Hearsay evidence’, Section 1 ‘The hearsay debate’.
Essential reading
1996) [ISBN 9780198258919], Chapter 2 ‘The rationales for the rule’ (available on
the VLE).
The justifications for the hearsay rule are summarised in Choo’s textbook and explored
in more depth in his article available on the VLE. There is also a European human rights
dimension to the justification for the hearsay rule on account of the right to a fair trial
and the concomitant right to confrontation. This will be explored separately in Section
9.4 below.
9.2 Hearsay in the Criminal Justice Act 2003 and the preserved
common law exception for res gestae
The law on hearsay in criminal proceedings is a big topic and we don’t look at it all in
detail in this course. In this section we will only look in detail at the scope of hearsay
and at ss.114, 115, 116 and the preservation of the common law exception of res gestae
(s.118). There is no need for us to get bogged down in, for example, the intricacies of
business documents (s.117).
9.2.1 Hearsay and the Criminal Justice Act 2003
Core texts
¢ Choo, Chapter 11 ‘Hearsay evidence’, Section 4 ‘Hearsay evidence in criminal
proceedings’.
¢ Durston, Chapter 6 ‘Hearsay evidence’, Section 3, ‘Implied assertions and the

hearsay rule’.
Essential reading
¢ Sections 114 and 115 of the CJA 2003.
¢ Cases: Twist [2011] EWCA Crim 1143, see also case comment by Ormerod, D. in
(2011) Crim LR 793; Billy Nathan Midmore [2017] EWCA Crim 533.

Further reading
¢ Cases: Kearley [1992] 2 AC 228; Teper [1952] AC 480; Ratten [1972] 2 AC 378; Leonard
(Mark) [2009] EWCA Crim 1251; Elliott [2010] EWCA Crim 2378; Twist [2011] EWCA
Crim 1143; Loveridge [2007] EWCA Crim 1041; Gyima [2007] Crim LR 890; Radak
[1999] Crim LR 223.
As we noted above, the CJA 2003 maintains a general rule whereby ‘a statement not
made in oral evidence in the proceedings’ is inadmissible as ‘evidence of any matter
stated’ (s.114(1)).
Section 115(3) provides that ‘a matter stated’ is one where ‘the purpose, or one of the
purposes, of the person making the statement appears to the court to have been – (a)
to cause another person to believe the matter, or (b) to cause another person to act or
a machine to operate on the basis that the matter is stated’. The effect of s.115(3) is to
reverse Kearley [1992] 2 AC 228 by removing ‘implied assertions’ from the scope of the
hearsay rule.
Implied assertions is a tricky topic and is one that often comes up in problem
questions in the examination. It is so tricky that some think even judges are confused
by it! A detailed explanation of implied assertions is provided by Roberts and
Zuckerman in ‘Implied assertions and the logic of hearsay’. This extract is available on
the VLE. You are advised to read it carefully, at least twice. The most authoritative case
in this area is Twist. You should read this case in full and twice also – this will hugely
assist you in applying the law to problem questions. You will find David Ormerod’s
commentary on it helpful.
Twist should also remind you of the importance of relevance. Regardless of whether
evidence is hearsay, it must be relevant to be admissible.
In Leonard (Mark) [2009] EWCA Crim 1251 the Court of Appeal explained that s.115 of the
CJA 2003 defines what is covered by the expressions ‘statement’ and ‘matters stated’
in s.114(1). Although this case has been fiercely criticised, it illustrates the difficulty of
applying the hearsay rule to implied assertions. On the impact of s.115 of the CJA 2003
on implied assertions, see Birch in the Further reading.
In Elliott [2010] EWCA Crim 2378 the Court of Appeal held that letters sent to the
defendant in prison which contained references to the defendant’s membership in a
gang were not hearsay evidence of the fact of his gang membership. This is because
the letters had not been written for the purpose of causing the defendant to believe
that he was a gang member or to act on the basis that the fact that he was a gang
member was true.
Activity 9.2
Alex is charged with the murder of his wife, Beatrice, by stabbing her. The
prosecution says that he stabbed her in their house and later threw her body over
a cliff. The prosecution wishes to call Charlene, a neighbour. She can give evidence
of a conversation that she had with Alex the day after Beatrice was last seen alive,
during which Alex said: ‘Do you know how to get bloodstains out of a carpet?’ Is
Charlene’s evidence caught, in principle, by the rule against hearsay?
1. What does the rule against hearsay forbid?
2. Why was the defendant’s appeal allowed in Subramaniam v Public Prosecutor

[1956] 1 WLR 965?
3. How has the CJA 2003 reversed the decision in Kearley [1992] 2 AC 228?
4. According to the Court in Twist what steps must the court go through in deciding
whether an out of court statement is hearsay?
5. Why might hearsay be perceived as unreliable evidence? Which of these

concerns, if any, applied to implied assertions?

against hearsay.
9.2.2 Exceptions to the hearsay rule
Core Text
¢ Choo, Chapter 11 ‘Hearsay evidence’, Sections 4.1 ‘Statutory exceptions in the
Criminal Justice Act 2003’ to 4.5 ‘Other safeguards’.
¢ Durston, Chapter 6 ‘Hearsay evidence’, Sections 5 ‘The Criminal Justice Act 2003’, 6
‘Unavailable witnesses’ and 8 ‘Section 114(1)(d) and the inclusionary discretion’.
Essential reading
¢ Sections 114, 116, 118, 121, 123–26 and 134 of the CJA 2003.
¢ Cases: Price v UK [2016] ECHR 15602/07; Riat [2012] EWCA Crim 1509; Ibrahim [2012]
EWCA Crim 837; Horncastle [2010] 2 AC 373; Shabir [2012] EWCA Crim 2564; Al-
Khawaja v UK [2011] ECHR 2127; Evans [2010] EWCA Crim 2516; Bailey [2008] EWCA
Crim 817; Adams [2007] EWCA Crim 3025.
There are four principal categories of exceptions to the exclusion of hearsay evidence.
You will find these referred to in s.114 of the CJA 2003 and elaborated upon in various
provisions of Chapter 2 of the Act:
u hearsay admissible by agreement (this is straightforward and provided for in

s.114(1)(c))
u hearsay admissible by statute (we will only be concerned with the admissibility
categories elaborated upon in s.116 – various other statutes make hearsay
statements of a particular kind admissible in criminal trials, but these are outside
the syllabus)
u hearsay admissible in the interests of justice (the safety-valve provided in s.114(1)(d))
u hearsay admissible under preserved common law rules (provided for in s.114(1)(b)
and elaborated upon in s.118).
Note the point made in Riat [2012] EWCA Crim 1509 that the most controversial cases
are likely to be those covered by s.116(2): death, illness, absence abroad, the lost
witness and fear, or by the additional possible gateway in s.114(1)(d). It is on these
provisions that you should focus. You should also study certain supplementary
provisions contained in ss.121 and 123–26 of the CJA 2003.
You should be aware of the possibility of admitting hearsay by agreement, but in

practice this is not likely to give rise to difficulties, and you should concentrate on the
remaining three categories.
Al-Khawaja v UK [2011] ECHR 2127 and Horncastle [2010] 2 AC 373 are important cases
that considered the compatibility of the CJA 2003 provisions on hearsay with Article
6(3)(d) of the ECHR. Much of their pronouncements are distilled in Riat, which you
should read in full (ideally you should read all three but if you only read one, make
it Riat). We will look at these cases again when we look at the impact of the ECHR on
this area. They will also be referred to throughout this topic as they are important
to the interpretation and application of the law in this area as well as to your critical
evaluation of the provisions.
9.2.2.1 Section 116: The unavailability exception

Section 116 provides:
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if –
(a) oral evidence given in the proceedings by the person who made the statement
would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the
court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.

It is clear that the subsection applies to both prosecution and defence witnesses, and
that the hearsay statement can be oral or written. However, the effect of s.116(1)(a) is
that no statement will be admissible as evidence of any matter of which the relevant
person could not have given oral evidence if they had been available. In the absence
of agreement or the exercise of judicial discretion, therefore, s.116 is confined to first-
hand hearsay. Note that s.116(1)(b) imposes a pre-condition for admissibility: a witness
whose statement falls for possible admission under s.116 must be identified: Mayers
[2008] EWCA Crim 2989; [2009] 1 Cr App R 30.
In order to use the unavailability exception, at least one of the five conditions set out
under s.116(2) must be satisfied:
u Condition (a) is that the person who made the statement (referred to in all five
conditions as ‘the relevant person’) is dead.
In Evans [2010] EWCA Crim 2516 at [18] the Court of Appeal accepted that, as a result
of the Supreme Court’s decision in Horncastle, a statement by a dead witness is not
admissible unless either demonstrably reliable or its reliability can be properly tested
and assessed.
Al-Khawaja and Horncastle were considered in Ibrahim [2012] EWCA Crim 837. D appealed
against his conviction for the rape of a prostitute and drug addict (W) in 2003. W, who
had previously made false allegations against another man, made statements two-
and-a-half years later that tended to incriminate D, but died before D’s trial. A witness
(T) claimed to have heard W shout ‘rape’ but in other respects W’s statements were
untested and largely unsupported. D was, however, convicted by the same jury of raping
another prostitute, S, and there was some DNA evidence that tended to link D with S.
On the question whether W’s hearsay statements should have been excluded, the
Court of Appeal said:
106. …In our view, if counsel for the defence had had the benefit of the judgments…in
Horncastle and…Al-Khawaja, he would have been bound to have made a submission that
even though [W’s] hearsay statements satisfied the conditions in s.116(1) and (2)(a), the
court should exercise its power to exclude them, pursuant to PACE, s.78. If, as we have
concluded, those statements were central to the prosecution’s case on counts 1 and 2 and
if, as we have concluded, they are not shown to be reliable, then we think it must follow
that the admission of that untested hearsay evidence would have had such an adverse
effect on the proceedings that the court ought not to have admitted the statements. If
the court were to have considered all the factors set out in the CJA, s.114(2) as a kind of
checklist, we think that, inevitably, the scales would have come down firmly in favour of
excluding the statements.
Note the court’s use of the factors in s.114(2) and the application of s.78 of PACE 1984.
u Condition (b) is that the person is unfit to be a witness because of a bodily or

mental condition.
Loveridge [2007] EWCA Crim 1041 is a good example of when this condition will apply.
u Condition (c) is that the relevant person is outside the United Kingdom, and it is
not reasonably practicable to secure their attendance. In deciding whether it is
reasonably practicable to secure the witness’s attendance to give oral testimony, a
court or judge must weigh a number of factors, including the potential importance
of the evidence, the expense and inconvenience that would be involved in
securing the witness’s attendance, and any particular reasons put forward as to
why it would not be practicable or convenient for the witness to attend (Gyima
[2007] Crim LR 890).
Consideration should be given as to whether the witness’s evidence may be secured

by other means, such as by using a live link (Radak [1999] Crim LR 223).
The fact that the witness chose deliberately to leave the United Kingdom and be
unavailable does not render their evidence inadmissible (Bailey [2008] EWCA Crim 817).
u Condition (d) is that the relevant person cannot be found, although such steps as it
is reasonably practicable to take to find them have been taken.
Adams [2007] EWCA Crim 3025 is a good example of the court refusing to admit the
evidence on the grounds that such steps as it would have been reasonably practicable
to take had not been taken.
In T(D) [2009] EWCA Crim 1213 the Court of Appeal stated that the right to
confrontation is a long-standing right of the common law and is not to be lightly
departed from. Evidence must be presented of the steps that have been taken to find
the witness and cost is a relevant factor in determining whether all reasonable steps
have been taken.
u Condition (e) is ‘that through fear the relevant person does not give (or does not
continue to give) oral evidence in the proceedings, either at all or in connection
with the subject matter of the statement, and the court gives leave for the
statement to be given in evidence’. This condition, like the rest of s.116, applies
equally to defence and prosecution, and to oral and written statements. Note
that where condition (e) is relied on, leave of the court is necessary before the
statement can be given in evidence, and the court is to have regard to the matters
set out in s.116(4). Section 116(3) provides that ‘[f]or the purposes of subsection
(2)(e) “fear” is to be widely construed and (for example) includes fear of the death
or injury of another person or of financial loss’. Leave is not needed in relation to
any other s.116(2) conditions. Note s.116(5) which deals with the situation where
unavailability is caused by the person in support of whose case the evidence is
tendered, or by someone acting on their behalf.
In Nelson [2009] EWCA Crim 1600 it was stated that:
[J]udges must be astute not to skew a fair trial by a too ready acceptance of assertions
of fear since it is all too easy for witnesses to avoid the inconvenience and anxiety of a
trial by saying they do not want to come.
Fear is to be assessed subjectively (Doherty [2006] EWCA Crim 2716).
Horncastle is an important case on this condition. The Supreme Court explained that
the fear does not need to be attributable to the defendant. It can include a climate
of fear in the area or reputation of the defendant. If there is fear, there is a justifiable
reason for absence. Where the fear is attributable to the accused or their associates, it
is an additional factor supporting the admissibility of the evidence, since otherwise a
premium is put by the criminal justice system on the intimidation of witnesses.
While the CJA 2003 requires fear to be construed broadly, it is not to be expected that
fear based upon inappropriate assurances by police officers will result in the evidence
being read and the case proceeding on the basis of it to the jury.
Consideration must first be given to whether special measures can be adopted to

enable such a person to give evidence.
You should read [64] and [65] of the judgment of Aikens LJ in Shabir [2012] EWCA
Crim 2564. This provides a useful summary of the relevant principles derived from
Horncastle, Ibrahim and Riat.
You should also note s.116(5).
Giving the judgment of the Court of Appeal in Rowley [2012] EWCA Crim 1434, Moore-
Bick LJ said:
In our view it is sufficient for the purposes of subsection (5) that the action of the party
seeking to adduce the hearsay evidence should have been an effective cause, albeit not
the only cause, of the witness’s absence, since to hold otherwise would significantly
undermine the policy of the legislation.
Activity 9.3
Dave is charged with the murder of Edgar. The prosecution says that Dave stabbed
Edgar during an argument in a public house.
a. Fiona, who was present when the stabbing occurred, says that she didn’t see
what happened, but that another customer, whom she didn’t know, told her
that he had seen everything and that Dave was only defending himself after
Edgar had attacked Dave with a knife. Dave’s brother has made some attempts
to trace the unknown customer, but without success. Dave wants to call Fiona to
give evidence of what she was told. Can he do so under s.116?
b. Gerald has told Dave’s brother that he was in the public house and saw Edgar
attack Dave with a knife. But he now refuses to appear as a defence witness,
saying that if his wife finds out that he was in a public house, it will be the end of
their marriage. Will Dave’s brother be able to give evidence under s.116 of what
Gerald told him?
c. Harry, another customer, has given a written statement to Dave’s solicitor,

saying that he saw Edgar attack Dave first. Harry cannot now be traced and the
defence wants to have his statement admitted under s.116. But the police have
heard rumours that Dave has given Harry money to go abroad because Harry’s
statement was false and he was unwilling to face cross-examination by the
prosecution. Advise the prosecution.
1. What justification is there for s.116(1)(b)?
2. What considerations are a court likely to take into account under s.116(2)(c) when
deciding if it is reasonably practicable to secure the attendance of a witness?

u describe and apply the unavailability exception (s.116).
9.2.2.2 Section 118: Preserved common law exceptions
Essential reading
¢ Cases: Spence [2011] EWCA Crim 94; Andrews [1987] 1 AC 281; Brown [2019] EWCA
Crim 1143.
With the exception of the rules preserved by s.118, the common law rules governing
the admissibility of hearsay evidence in criminal proceedings are abolished. Minor
exceptions preserved by the section are:
u published works dealing with matters of a public nature (such as histories,

scientific works, dictionaries and maps) as evidence of facts of a public nature
stated in them
u public documents (such as public registers and returns made under public authority
with respect to matters of public interest) as evidence of facts stated in them
u records (such as the records of certain courts, treaties, Crown grants, pardons and
commissions) as evidence of facts stated in them
u evidence relating to a person’s age, date or place of birth
u reputation as evidence of a person’s good or bad character
u reputation or family tradition as evidence of pedigree or the existence of a

marriage, the existence of any public or general right, or the identity of any person
or thing
u informal admissions made by an agent.

The section also preserves any rule of law under which an expert witness may draw
on the body of expertise relevant to their field, and any rule of law relating to the
admissibility of confessions or mixed statements.
In addition, two major common law exceptions are preserved: res gestae and
statements in furtherance of a common enterprise. It is on res gestae that you should
concentrate: see Spence [2011] EWCA Crim 94 and Andrews [1987] 1 AC 281.
Spence at [7]–[11]: ‘The utterance of Laura was so immediate, so instinctive that the jury
was entitled to reject any possibility of concoction or distortion.’ The Ackner criteria
laid down in Andrews were held on appeal to have been satisfied in this case.
1. What is the meaning of res gestae, and when does this exception apply?
2. Summarise the test that was laid down in Andrews [1987] 1 AC 281 for the
admissibility of excited utterances.

By this stage, and having completed the Essential reading and activities, you should
be able to:
u describe and apply the preserved common law exceptions (s.118).
9.2.2.3 The ‘safety-valve’: s.114(1(d)
Core texts
¢ Choo, Chapter 11 ‘Hearsay evidence’, Section 4.3 ‘Other proceedings in which the
hearsay rule is inapplicable’.
¢ Durston, Chapter 6 ‘Hearsay evidence’, Section 8 ‘Section 114(1)(d) and the

inclusionary discretion’.
Essential reading
By s.114(1)(d) of the CJA 2003, a hearsay statement is admissible if the court is satisfied
that it is in the interests of justice for it to be so. This is known as the ‘safety-valve’.
In deciding whether to admit a statement under this provision, the court must
have regard to the factors set out in s.114(2), and to any other factors it considers
relevant. The list of factors in s.114(2) is intended to focus attention on whether the
circumstances surrounding the making of the hearsay statement show that it can be
treated as reliable enough to be admitted, despite the absence of cross-examination.
Make sure you familiarise yourself with the factors in s.114(2) which the court must
have regard to (among any others it thinks are relevant) in deciding whether to admit
evidence under s.114(1)(d).
The safety-valve is available to both prosecution and defence. It can extend to multiple
hearsay, but in that case it seems that the condition contained in s.121(1)(c) would have
to be satisfied.
J(S) [2009] EWCA Crim 1869 was concerned with facts similar to those in Sparks [1964]
AC 964. Section 114(1)(d) of the CJA 2003 was used to admit hearsay evidence of what
had been said by a child aged two-and-a-half to her mother about the actions of the
defendant.
In Minchin [2013] EWCA Crim 2412 the court examined s.114(1)(d) and the relationship
between s.114(1)(d) and other gateways.
Section 114(1)(d) should not be used to circumvent s.116

In O’Hare [2006] EWCA Crim 2512 the Court of Appeal considered whether the safety-
valve can be used to admit evidence that had failed to gain admission under s.116.
The Court observed, obiter: ‘We think it 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.’ Section 116 contains a code for the admissibility of hearsay evidence when a
witness is unavailable that had been ‘carefully provided by Parliament’.
In Z [2009] EWCA Crim 20 D was charged with rape and indecent assault on the
complainant, who was aged between 9 and 13 when the offences were said to have
occurred. At trial, the prosecution applied to adduce hearsay evidence of D’s bad
character to establish propensity and to correct D’s impression of himself as a good
family man. One of the items of evidence came from a doctor, who said that, about 15
years before the date of the trial, a third party (not the complainant) had told him that
when she (the third party) was a young girl, the defendant had repeatedly sexually
abused her. During the investigation of matters leading to the current trial she had
repeated these allegations to the officer in the case. But she said that she did not wish
to give evidence because she wanted to put the matter behind her and she did not
want to have to re-live the events by testifying for the prosecution in the current trial.
The trial judge admitted her evidence under s.114(1)(d), but the Court of Appeal said
that he had been wrong to do so and quashed the conviction. Giving the judgment of
the Court, Stanley Burnton LJ said that s.114(1)(d) had to be construed in its statutory
context. It was important in this case, where the hearsay statement contained an
allegation of misconduct, to read s.114 with s.116. Section 116 was narrowly drawn and
did not cover the witness in this case. He said: ‘In our judgment, section 114(1)(d) is
to be cautiously applied, since otherwise the conditions laid down by Parliament in
section 116 would be circumvented.’ However, he added that s.114(1)(d) should not
be so narrowly applied that it had no effect. There would be cases in which hearsay
evidence might be admitted under that provision when it could not be admitted
under s.116, as had been the case in Isichei [2006] EWCA Crim 1815 and Xhabri [2006] 1
Cr App R 26. Those cases differed from Z because the hearsay statements with which
both cases were concerned had been part of the incidents that were the subject
matter of the trial. In Isichei the statement was part of a series of events taking place
one night which had ended in robbery of the complainant by the defendant. In Xhabri
the statements were made by the complainant to others at a time when she was being
held against her will by the defendant.
In ED [2010] EWCA Crim 1213, the Court of Appeal disapproved of the trial judge’s
decision to use s.114(1)(d) to admit hearsay evidence from an old school friend of
one of the victims of a complaint of historic sex abuse. The trial judge had failed to
take into account the fact that the prosecution was at fault in not giving the witness
enough notice that she would be required to give oral evidence (she was heavily
pregnant and had a family holiday booked at the time of the trial).
9.2.2.4 Section 114(1)(d) and confessions

Y [2008] EWCA Crim 10 was a case of murder where it was alleged that two men, X and
Y, were involved. They were separately tried. X was tried first and pleaded guilty. At the
trial of Y, the prosecution applied to have an out-of-court confession made by X which
implicated Y admitted under s.114(1)(d). The trial judge ruled that s.114(1)(d) had no
application to a hearsay statement contained in the confession of another person. The
prosecution brought an interlocutory appeal to the Court of Appeal.
It was argued for Y that s.114(1)(d) has to be read in the light of s.118, which preserves
any rule of law relating to the admissibility of confessions. The effect of this section,
it was argued, is to preserve not only the rule that a confession is admissible as
an exception to the rule against hearsay, but also the common law rule that it is
admissible only against its maker. Effectively, it was argued, the interests of justice
requirement could not allow this rule to be ignored. The Court of Appeal held that
s.114(1) replaces the common law rule that hearsay is prima facie inadmissible with
a rule that hearsay is admissible ‘if but only if’ it falls within one or other of s.114(1)
(a)–(d). Section 114(1)(b) makes admissible any evidence which is admissible under
a rule of law preserved by s.118. So s.118 is expressly said to be concerned with the
admissibility of evidence, not with its inadmissibility. Section 114(1)(d) introduces a
wholly new idea, which is that the judge may admit otherwise inadmissible hearsay
evidence if they are satisfied that it is in the interests of justice to do so. It follows that
hearsay contained in a confession is as open to admission under s.114(1)(d) as any
other hearsay, and this is so even where the hearsay is contained (as the hearsay in this
case was not) in a police interview.
However, the Court said that the existence of s.114(1)(d) does not make the police
interview of one defendant routinely admissible in the case of another. The reasons
for excluding such evidence (for example, that it is second best evidence and difficult
to test and assess) are likely to continue to mean that in the great majority of cases
it will not be in the interests of justice to admit the confession of one defendant as
evidence against another. The factors referred to in s.114(2), particularly the reliability
of the hearsay statement, will often be significant as well, but the Court suggested that
it might be easier to admit such evidence on the application of a co-defendant who
wishes to use it to support their own defence. (Suppose A, B and C are charged with
the murder of X. A’s interview with the police implicates A and B, but not C. C might
well wish to rely on what A said in interview to support their own case that they were
not involved.)

u describe, evaluate and apply the safety-valve exception (s.114(1)(d)).
9.3 Supplementary safeguard provisions of note
Core texts
¢ Choo, Chapter 11 ‘Hearsay evidence’, Sections 4.4 ‘Multiple hearsay’ and 4.5
‘Other safeguards’.
¢ Durston, Chapter 6 ‘Hearsay evidence’, Section 8 ‘Section 114(1)(d) and the

inclusionary discretion’.
Essential reading
¢ Cases: Riat [2012] EWCA Crim 1509; Ibrahim [2012] EWCA Crim 837; Horncastle
[2010] 2 AC 373; Al-Khawaja and Tahery v UK [2011] ECHR 2127.
9.3.1 Section 121
Core text
¢ Choo, Chapter 11 ‘Hearsay evidence’, Section 4.4 ‘Multiple hearsay’.
Essential reading
u Munday, ‘The rule against hearsay’, Section I ‘Hearsay in criminal cases’,
‘Admissibility of “multiple hearsay” (s.121)’ (available on the VLE).
This section provides that additional requirements have to be satisfied before the court
will admit multiple hearsay. You should read the section and the short extract by Munday.
9.3.2 Section 124

You should read this statutory provision and note that this safeguard was praised in
Horncastle:
The opposing party is enabled to put in evidence anything which he could have put in
if the witness had been present, but may also put in material which, if the witness had
been present, could only have been asked of him in cross-examination in circumstances
where his answers would have been final; this puts the challenger to that extent in a better
position than if the witness is present, and is designed to help to counterbalance the
absence of cross-examination of the witness in person. [36]
9.3.3 Section 125(1)

This section provides as follows:
If, on a defendant’s trial before a judge and jury for an offence the court is satisfied at any
time after the close of the case for the prosecution that –
the case against the defendant is based wholly or partly on a statement not made in oral
evidence in the proceedings, and
the evidence provided by the statement is so unconvincing that, considering its

importance to the case against the defendant, his conviction of the offence would be
unsafe
the court must either direct the jury to acquit the defendant of the offence or, if it
considers that there ought to be a retrial, discharge the jury.
This provision applies only to jury trials, because in summary trials the magistrate or
district judge would be bound to find in such circumstances that there was no case to
answer.
9.3.4 Section 126

The court has a common law discretion to exclude prosecution evidence where its
prejudicial effect is likely to outweigh its probative value. There is also a statutory
discretion to exclude evidence on which the prosecution proposes to rely where the
admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it. Both discretions are preserved in
relation to hearsay evidence by s.126(2). Section 126(1) provides a further discretion
to exclude a hearsay statement if ‘the court is satisfied that the case for excluding the
statement, taking account of the danger that to admit it would result in undue waste
of time, substantially outweighs the case for admitting it, taking account of the value
of the evidence’.
9.4 The impact of Article 6(3)(d) of the European Convention on

Human Rights
Core texts
¢ Choo, Chapter 11 ‘Hearsay evidence’, Section 4.7 ‘The European human rights
dimension’.
¢ Durston, Chapter 6 ‘Hearsay evidence’, Section 9 ‘The impact of Article 6(3)(d) of

the ECHR on hearsay evidence’. (Note that Durston is out of date on this topic.)
Essential reading
¢ Cases: Al-Khawaja and Tahery v UK [2009] All ER (D) 132; Al-Khawaja and Tahery
v UK [2011] ECHR 2127; Horncastle [2009] UKSC 14; Riat [2012] EWCA Crim 1509;
Horncastle v UK [2014] ECHR 1394; Taylor [2013] EWCA Crim 2398.
Further reading

[ISBN 9781849464956], Chapter 12 ‘Confronting confrontation’ (available on the
VLE).
(2010) Crim LR 255.
Further viewing
¢ Al-Khawaja and Tahery v United Kingdom (App No 26766/05)
Webcast of Grand Chamber hearing – 19 May 2010: www.echr.coe.int/Pages/home.as

px?p=hearings&w=2676605_19052010&language=en
This issue has generated a great deal of interest and case law in recent years. You need
to familiarise yourself with the cases summarised below. You need to take their dicta
into account in both your application and evaluation of the law on hearsay.
One of the effects of the Human Rights Act 1998 is to make the ECHR directly
enforceable by English courts. By s.2(1)(a), a court determining a question which has
arisen in connection with a Convention right must take into account judgments of
the European Court of Human Rights (ECtHR). These are not binding authorities, but
it is expected that English courts will follow them unless restrained from doing so by
statute or binding case law. Among the ‘minimum rights’ of a defendant in criminal
proceedings is the right under Article 6(3)(d) of the Convention ‘to examine or have
examined witnesses against him’. Broadly speaking, the effect of this is to give a
defendant the right to have a witness who gives evidence against him called to give
oral testimony and be subjected to cross-examination.
The right recognised by Article 6(3)(d) is, however, limited in its application. First,
the ECtHR has often said that the admissibility of evidence is a matter for national
law and that its own role is to assess the overall fairness of the criminal proceedings
in question. The rights set out in Article 6(3) are aspects of the right to a fair trial but
are not absolute in themselves. Second, the ECtHR has recognised the need for a fair
balance between the general interest of the community and the rights of individual
defendants.
In Luca v Italy (2003) 36 EHRR 46 there was a suggestion by the ECtHR that where a
conviction is based solely, or to a decisive degree, on statements made by a person
whom the defendant has had no opportunity to examine, the rights of the defendant
will have been restricted to such an extent as to be incompatible with Article 6. In
Sellick [2005] 1 WLR 3257 the Court of Appeal said that, where a court was sure that a
witness had been kept from giving evidence by a defendant, or by persons acting for
him, there would be no infringement of Article 6 because the defendant would have
denied himself the opportunity of cross-examining the witness. It was necessary to
bear in mind the rights of victims and of the public in general as well as those of the
defendant. The Court said that there would be more difficulty where the evidence
was not so clear cut, so that it was only highly probable that a witness had been
intimidated.
Hearsay evidence of a complainant was admitted in Al-Khawaja [2006] 1 WLR 1078. In

that case the appellant had been charged with two counts of indecent assault, but
one of the complainants had died by the time the trial took place. Her statement was
admitted in accordance with legislation then in operation. On appeal, it was argued
that this violated Article 6(3)(d). The appeal was dismissed. The Court of Appeal said
that the public interest in enabling the prosecution to proceed must not outweigh
the defendant’s right to a fair trial, but the right of cross-examination was only one
element in such a trial. In that case, the appellant had been able to attack the accuracy
of the deceased complainant’s statement by exploring inconsistencies between it and
evidence of recent complaints that she had made. He had also been able to adduce
expert evidence to counter her allegations and the trial judge had pointed out to the
jury the difficulties presented by lack of an opportunity to cross-examine the witness.
The proceedings as a whole had been fair.
The question arose again in the ECtHR in Al-Khawaja and Tahery [2009] All ER (D) 132. The
Court ruled that Article 6(3) was an express guarantee in itself; it could not be read simply
as an illustration of matters to be taken into account when considering the fairness of
the trial. In Al-Khawaja’s case the hearsay statements had been the only, or at least the
decisive, basis for conviction. For this reason, and as there were no factors which could
counterbalance the prejudice to the defendant, his minimum rights had been infringed
and there had been a violation of Article 6(1), read in conjunction with Article 6(3)(d).
In Horncastle [2009] UKSC 14 the Supreme Court declined to follow the judgment of the
ECtHR in Al-Khawaja. The ECtHR had ruled that hearsay was inadmissible where it was
the sole or decisive evidence against a defendant. The Supreme Court said that this
principle had been introduced into European jurisprudence without discussion of its
underlying principles and without full consideration of whether there was justification
for imposing it on common law systems. The safeguards enacted in the CJA 2003
made such a principle unnecessary. You need to read this judgment in full and make
careful note of what the Court states about the safeguards provided by the CJA 2003 in
relation to the admission of hearsay evidence.
Al-Khawaja and Tahery v UK [2011] ECHR 2127 is the decision of the Grand Chamber of
the ECtHR. The decision in this case averts the potential conflict between the domestic
courts and the ECtHR on the interpretation of Article 6(3)(d). Convictions secured on
hearsay evidence that is sole or decisive will not necessarily breach Article 6(3)(d). See
David Ormerod’s ‘Worth the wait?’ (in Further reading, below) for his discussion of the
Grand Chamber’s decision in Al-Khawaja. The judgment in Horncastle [2014] ECHR 1394
concludes the judicial dialogue between the ECtHR and the Supreme Court on the
admissibility of hearsay evidence.
In Evans [2010] EWCA Crim 2516 the Court of Appeal accepted that as a result of
the Supreme Court’s decision in Horncastle, a statement by a dead witness is not
admissible unless either demonstrably reliable or its reliability can be properly tested
and assessed. It concluded that the second condition was satisfied. The same point
was made about the evidence of another witness who had agreed to give evidence
by video link from Spain but had failed to show up on the appointed day. The Court of
Appeal upheld the trial judge’s decision to admit evidence she had given earlier that
year to a Spanish magistrate in response to a letter of request and six years earlier on
commission in Gibraltar notwithstanding that she had never been cross-examined
because the jury were in a position to test and assess her evidence.
Horncastle was considered in Riat [2012] EWCA Crim 1509, in which the Court of Appeal
warned that it does not lay down any general rule that hearsay evidence must be
shown to be reliable before it can be admitted. The Court instead suggested that the
statutory framework provided for hearsay evidence can usefully be considered in six
successive steps:
1. Is there a specific statutory justification (or ‘gateway’) permitting the admission of

hearsay evidence (ss.116–18)?
2. What material is there which can help to test or assess the hearsay (s.124)?
3. Is there a specific ‘interests of justice’ test at the admissibility stage?
4. If there is no other justification or gateway, should the evidence nevertheless be

considered for admission on the grounds that admission is, despite the difficulties,
in the interests of justice (s.114(1)(d))?
5. Even if prima facie admissible, ought the evidence to be ruled inadmissible (s.78 of
PACE 1984 and/or s.126 of the CJA 2003)?
6. If the evidence is admitted, then should the case subsequently be stopped under
s.125?
The Court then added that although there is no rule to the effect that where the
hearsay evidence is the ‘sole or decisive’ evidence in the case it can never be admitted,
the importance of the evidence to the case against the accused is central to these
various decisions.
As to the position in civil cases where the sole evidence is hearsay see Welsh v Stokes
[2008] 1 WLR 1224 where Dyson LJ upheld the judge’s decision to rely upon the hearsay
evidence in delivering judgment in favour of the claimant, adding:
Where a case depends entirely on hearsay evidence, the court will be particularly
careful before concluding that it can be given any weight. But there is no rule of law
which prohibits a court from giving weight to hearsay evidence merely because it is
uncorroborated and cannot be tested or contradicted by the other party.
Horncastle and Riat were considered in Taylor [2013] EWCA Crim 2398. Horncastle,
said the court in Taylor, does not require that admissible hearsay evidence must be
demonstrably reliable. Article 6 of the ECHR requires a fair trial, and this is possible
either where the evidence is demonstrably reliable or where there are sufficient
tools available to the jury to assess the extent of its reliability. Features which tend
to demonstrate reliability include: the disinterest (lack of bias) of the maker of the
statement; and evidence independent of the hearsay which dovetails with it. Taylor
follows Riat in suggesting that the key questions in this context are:
1. Is there a specific gateway permitting the admission of the evidence?
2. What material is there to test or assess the hearsay?
3. Is there an interest of justice test to be applied?
4. If there is no specific gateway, should it be admitted under s.114(1)(d)?
5. Should it be ruled inadmissible under s.78 of PACE 1984 by reason of the unfair
prejudice that would otherwise arise?
6. Should the case be stopped if it is based wholly or partly on hearsay evidence

which is so unconvincing that a conviction based upon it would be unsafe (s.125(1)
of the CJA 2003)?
In Price v UK [2016] ECHR 15602/07 the ECtHR stated, following the judgments of the
Grand Chamber in Al-Khawaja and Tahery v UK (2012) 54 EHRR 807 and Schatschaschwili v
Germany [2014] ECHR 9154/10, that the absence of good reason for the non-attendance
of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although
it remained a very important factor to be weighed in the balance when assessing the
overall fairness, and one which might tip the balance in favour of finding a breach
of Article 6(3)(d). Good reason for the absence of a witness must exist from the trial
court’s perspective, that is, the court must have had good factual or legal grounds not
to secure the witness’s attendance at the trial.
The prosecution had made various attempts to secure the attendance of V, a witness
from Guyana who refused to attend the trial. The ECtHR was not in a position to
determine whether there was an adequate reason for V’s non-attendance, but, even if
there was not, there was substantial independent evidence both to incriminate P and to
support V. Further, the domestic legal framework provided sufficient counter-balancing
procedural safeguards such that it could not be said that the trial of P was unfair.

Relevance is key to hearsay, as illustrated in the step-by-step process articulated in Twist.
The purpose of adducing the evidence (which begs the question of what issue in the case
it is relevant to) must be identified in order to decide whether the evidence is hearsay.
Further reading
¢ Case: Kearley [1992] 2 AC 228. This case will assist you in thinking about relevance
in depth. As is clear from his commentary on Twist, Ormerod disagrees with the
‘narrow’ view of relevance expressed in Kearley. Do you think evidence of the
phone calls in Kearley should be admissible? They would no longer be hearsay,
but would they be relevant? (There is no right answer.)

This is a big topic and several areas arise for critical evaluation, the most obvious
of which are, first, the definition of hearsay in the CJA 2003 – is it right that implied
assertions are excluded from the scope of hearsay? Is the definition of hearsay clear? If
not, how is it ambiguous and why does it matter? Second, are the risks associated with
hearsay evidence sufficiently addressed in the law? Third, what about the defendant’s
right to a fair trial and the right to confrontation – are these sufficiently protected by
the law on hearsay in criminal proceedings?
Core text
¢ Choo, Chapter 11 ‘Hearsay evidence’, Sections 4.6 ‘A brief evaluation’, 4.7 ‘The
European human rights dimension’ and 5 ‘Summary and conclusion’.
Essential reading

1996) [ISBN 9780198258919], Chapter 2 ‘The rationales for the rule’ (available on
the VLE).

Further reading

[ISBN 9781849464956], Chapter 12 ‘Confronting confrontation’ (available on the
VLE).
(2010) Crim LR 255.
Activity 9.4 – Key cases analysis: Horncastle, Riat and Ibrahim

a. Read the UK Supreme Court’s decision in Horncastle and answer the following
question.
What five reasons did Lord Phillips give for refusing to follow the ECtHR ruling
in Al-Khawaja and Tahery v UK that the introduction in evidence of a hearsay
statement, which constituted the sole or decisive evidence against the
defendant, would breach Article 6(3)(d) and the general right to a fair trial under
Article 6? Do you agree with the Supreme Court?
No feedback provided to (a).

b. Read Riat [2012] EWCA Crim 1509 and answer the following questions.
i. For the purposes of a Crown Court in England and Wales dealing day to
day with hearsay evidence, what five propositions did the Court of Appeal
describe as central?
ii. List the successive steps the Court of Appeal articulated for applying the
statutory framework provided for hearsay evidence by the CJA 2003? (NB:
these will be helpful to you in applying the law in problem questions.)
iii. If a specific gateway for admission is passed, what questions did the Court of
Appeal say the court should consider before admitting the evidence?
iv. What did the Court of Appeal in Riat say about the hearsay evidence in
Ibrahim?

be able to:
against hearsay
u describe and apply the unavailability exception (s.116)
u describe and apply the preserved common law exceptions (s.118)
u describe and apply the ‘safety-valve’ exception (s.114(1)(d))
u explain what is meant by ‘multiple hearsay’ and describe the circumstances in
which it can be admitted (s.121)
u explain and apply the provisions relating to credibility in s.124
u explain in what circumstances a trial can be stopped under s.125
u describe the general discretions to exclude hearsay evidence contained in or
preserved by s.126
Quick quiz
Question 1
In which of the following two scenarios does the prosecution seem to be seeking to
adduce hearsay evidence?
a. Carlos is on trial for threatening to kill Duncan. According to the prosecution Carlos
shouted ‘I will kill you if you touch my jacket again!’ Part of Carlos’s defence is that
he does not speak English. The prosecution seeks to call Mary to give the following
evidence: ‘I met Carlos at a bus stop. He turned and said to me “I love the rain.”’
b. Carlos is on trial for threatening to kill Duncan. According to the prosecution Carlos
shouted ‘I will kill you if you touch my jacket again!’ Part of Carlos’s defence is that
he does not speak English. The prosecution seeks to call Mary to give the following
evidence: ‘I met Carlos at a bus stop. He turned and said to me “I hate it when
people touch my clothes.”’
Question 2
Which of the following statements is true?
a. As a result of the hearsay provisions in the CJA 2003 a confession is now

automatically admissible as evidence against anyone implicated in it, and not just
its maker.
b. As a result of the hearsay provisions in the CJA 2003 a confession is now routinely
admissible as evidence against anyone implicated in it, and not just its maker.
c. As a result of the hearsay provisions in the CJA 2003 a confession is now

occasionally admissible as evidence against anyone implicated in it, and not just its
maker.
Question 3
a. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
directly attributable to the defendant.
b. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
of death, injury or financial loss.
c. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
the reason for their refusal to give oral evidence.
Question 4
Which of the following is a correct statement of the law?
a. As a result of the decision in Al-Khawaja and Tahery v UK [2011] ECHR 2127 hearsay will
not be admissible if it is the sole or decisive evidence against a defendant.
b. As a result of the decision in Al-Khawaja and Tahery v UK [2011] ECHR 2127 hearsay
may be admissible even if it is the sole or decisive evidence against a defendant.
Question 5
According to Choo, what value does the right to confrontation protect?
a. The dignity of the defendant.
b. The medieval concept of retribution.
c. The right of the state to call its citizens to account.

Question 1
During a routine operation at Mile End train station, a police dog indicates Albert
and the police stop and search him as a result. Police find the following items in
his pocket: a small amount of cocaine, £500 cash and a mobile telephone. Albert is
arrested. The police go through his phone and find the following text messages in
his inbox, all from different phone numbers.
a. ‘Can I have thrice my usual this week? I’ve got a lady to entertain and she likes to
have her nose powdered!’
b. ‘Hi, I am new in the neighbourhood. Any chance of some cocaine? I’ll be a good
customer!’
Alfred is interviewed at the police station. He admits that the cocaine is his and
claims it is for personal use. He has no idea who the people texting him are, or why
they are texting him. When asked to explain where he got the £500 from he makes
no comment.
Albert is charged with possession of cocaine with intent to supply. At trial Albert
will give evidence stating that the £500 had been given to him by his uncle who
he had been visiting in Mile End. His uncle has since emigrated to China but he has
provided a statement in which he explains that he had given Albert the cash as a
farewell present. Albert will say that he does not know why people were texting
him about cocaine.
The prosecution will seek to adduce evidence of the text messages.
Discuss the evidential issues arising, adding critical comment where you think the
law is unsatisfactory.
Question 2
‘While Al Khawaja and Tahery v UK (2011) made convincing arguments that the
Criminal Justice Act 2003 had robust provisions to deal with the problems of
hearsay evidence, they have been applied very loosely since then.’
Discuss.

Question 1
In relation to the text messages you will need to discuss whether this is hearsay by
applying the test in Twist. The question also raises issues in relation to silence and
so you will need to discuss s.34 of the Criminal Justice and Public Order Act 1994 in
relation to his failure to mention his uncle at interview. You will also need to address
the admissibility of the uncle’s statement under s.116(2)(c) of the CJA 2003.
Question 2
The focus of the answer should be on Al Khawaja and Tahery v UK (2011) and the
robustness (or otherwise) of the CJA 2003 provisions. Good answers would explain
the dangers that prosecution hearsay evidence presents, including to the right to a
fair trial, making reference to Article 6(3)(d) of the ECHR. It would be a good idea to
explain how particular provisions address the specific risks you mention. Very good
answers would also briefly discuss Horncastle v UK. In assessing subsequent application
of the CJA 2003 provisions, guidelines in Ibrahim and Riat are relevant and cases on the
unavailability (s.116) exceptions predominate. You might also discuss Price v UK.
Notes
10 Expert evidence
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
10.1 The risks associated with expert evidence . . . . . . . . . . . . . . . 133
10.2 Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
10.3 The presentation and evaluation of expert evidence . . . . . . . . . . 135
10.4 Judicial directions to the jury . . . . . . . . . . . . . . . . . . . . . . 135
10.5 Eye on relevance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Introduction
The legal significance of a witness being classified as an expert lies partly in the
exception made for experts to the rule against admitting evidence of opinion
(Durston, Chapter 11, Section 11.1). Opinion evidence is not generally permitted
because opinion is either worthless (on account of being based on no evidence or
inadmissible evidence) or would usurp the role of the tribunal (to draw conclusions
from the evidence). An exception is made for expert opinion in cases where the judge
or jury lacks the necessary experience to draw inferences competently from the facts
that have emerged from the evidence. Where this is so, someone with the necessary
expertise is allowed to give their opinion about facts to the extent that it will assist
the judge or jury in reaching a correct verdict. Experts should explain the basis of their
opinion to the tribunal of fact so that it reaches its own decision as to whether to
adopt the expert opinion.
Tribunals will often require expert assistance in the interpretation of scientific

evidence (DNA, for example) but this is not the only area of knowledge in relation to
which the courts admit expert opinion.
The amount of scientific evidence used in the courts has hugely increased in recent
decades. Scientific evidence can include both factual and opinion evidence (Phipson,
Section 33.10). The phrase ‘expert evidence’ is often used as shorthand for both
scientific fact and scientific opinion. This may be because, in most cases, scientific
findings would be meaningless (and so inadmissible on account of lacking probative
value) in the absence of expert opinion because expertise would be required for the
tribunal to understand the significance of the scientific fact (see, for example, Fleur and
Sinitchiyski [2004] EWCA 2372).
In recent years a number of high profile miscarriages of justice have illustrated

the risks associated with expert evidence in criminal proceedings. The Law
Commission published a Consultation Paper (2009) on the challenges faced and a
Report (2011) proposing the introduction of a new admissibility test. Aspects of its
recommendations have been included in the Criminal Practice Direction for expert
evidence (CPD V Evidence 19A: Expert evidence).
Core texts
¢ Choo, Chapter 12 ‘Expert evidence’, Section 2.7 ‘DNA evidence’.
¢ Durston, Chapter 11 ‘Opinion evidence’.
Essential reading
¢ Dennis, I., Chapter 20 ‘Opinion and expert evidence’ (available in VLeBooks via
the Online Library). This chapter provides the best overview of this area of law.
¢ Part 19 of the Criminal Procedure Rules.
¢ CPD V Evidence 19A: Expert evidence. Please note recent changes, adding
Paragraphs 19A.7 to 19A.9. [2019] EWCA Crim 495: www.bailii.org/ew/cases/EWCA/
Crim/2019/495.html
¢ Part 35 of the Civil Procedure Rules (available on the VLE).
¢ Law Commission Consultation Paper 190 (2009) ‘The admissibility of expert

evidence in criminal proceedings in England and Wales: a new approach to the
determination of evidentiary reliability’, Part 2. Available at: www.lawcom.gov.
uk/app/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf
¢ Law Commission Report No. 325, ‘Expert evidence in criminal proceeding

in England and Wales’ (2011), paras 1.13–1.30, 2.1–2.23, 8.9–8.30 and
9.1–9.14). Available at: www.gov.uk/government/publications/
expert-evidence-in-criminal-proceeding-in-england-and-wales
Evidence 10 Expert evidence page 133
¢ Cases: Fleur and Sinitchiyski [2004] EWCA 2372; Davie v Edinburgh Magistrates
1953 SC 34; Luttrell [2004] EWCA Crim 1344; Reed and Reed [2009] EWCA Crim
2698. Garmson [2009] EWCA Crim 2698; [2010] 1 Cr App R 23 (and commentary
by Andrew Roberts in (2010) 9 Crim LR 716; Silverlock [1894] 2 QB 766; Bonython
(1984) 38 SASR 45; Barry George [2007] EWCA Crim 2722; Dlugosz [2013] EWCA
Crim 2.
Further reading
¢ Roberts, A. ‘Drawing on expertise: legal decision-making and the reception of
expert evidence’ (2008) Crim LR 443. (This article includes a valuable discussion on
the relative merits of exclusionary discretions compared to exclusionary rules.)
¢ Dennis, I. ‘Tightening the law on expert evidence’ (2015) 1 Crim LR 1.
¢ Roberts, P. and M. Stockdale Forensic science evidence and expert witness

testimony: reliability through reform? (London: Edward Elgar, 2018)
[ISBN 9781788111027].
Learning outcomes
u explain who may qualify as an expert witness
u explain in what circumstances expert evidence will be admissible
u explain the difficulties juries may have in evaluating expert evidence
u identify the risks associated with expert evidence
u explain, apply and evaluate recent reforms.
10.1 The risks associated with expert evidence
Core text
¢ Durston, Chapter 11 ‘Opinion evidence’, Section 4 ‘Problems pertaining to expert
evidence’.
Essential reading
¢ Law Commission Consultation Paper 190 (2009) ‘The admissibility of expert
evidence in criminal proceedings in England and Wales: a new approach to the
determination of evidentiary reliability’, Part 2. Available at: www.lawcom.gov.
uk/app/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf
¢ Law Commission Report No. 325, ‘Expert evidence in

criminal proceeding in England and Wales’ (2011), paras
1.13–1.30. Available at: www.gov.uk/government/publications/
expert-evidence-in-criminal-proceeding-in-england-and-wales
Further reading
¢ Goldacre, B. Bad science. (London: Fourth Estate, 2009) [ISBN 9780007284870],
Chapter 14 ‘Bad stats’ (available on the VLE).
¢ Roberts, A. and G. Edmond ‘The Law Commission’s report on expert evidence in

criminal proceedings’ (2011) Crim LR 844.
Activity 10.1
What reasons did the Law Commission provide for its proposals to reform the law
on expert evidence in criminal proceedings?
10.2 Admissibility
Essential reading
¢ Part 19 of the Criminal Procedure Rules.
¢ CPD v Evidence 19A: Expert evidence. Please note recent changes, adding
Paragraphs 19A.7 to 19A.9. [2019] EWCA Crim 495: www.bailii.org/ew/cases/EWCA/
Crim/2019/495.html
¢ Part 35 of the Civil Procedure Rules.
¢ Phipson on evidence. (London: Sweet & Maxwell, 2017) [ISBN 9780414065543],

Chapter 33, Section 10 ‘Subjects of expert evidence’ (available on the VLE).
¢ Ward, T. ‘“A new and more rigorous approach” to expert evidence in England
and Wales?’ (2015) 19(4) IJEP 228.
¢ Ward, T. ‘Expert evidence and the Law Commission: implementation without

legislation’ (2013) Crim LR 561.
¢ Cases: Luttrell [2004] EWCA Crim 1344; Reed and Reed [2009] EWCA Crim 2698,
Garmson [2009] EWCA Crim 2698; [2010] 1 Cr App R 23; Silverlock [1894] 2 QB 766;
Bonython (1984) 38 SASR 45; Dlugosz [2013] EWCA Crim 2.
Further reading
¢ Edmond, G. et al. ‘Atkins v The Emperor: the “cautious” use of unreliable “expert”
opinion’ (2010) 14 IJEP 166.
¢ Ward, T. ‘Explaining and trusting expert evidence: what is a “sufficiently reliable

scientific basis”?’ (2020) 24(3) IJEP 233–54.
In civil proceedings, r.35.1 of the Civil Procedure Rules (CPR) states: ‘Expert evidence
shall be restricted to that which is reasonably required to resolve the proceedings.’ In
Part 2 of its report on ‘Expert evidence in criminal proceedings in England and Wales’,
the Law Commission summarises the requirements relating to the admissibility
of expert evidence in criminal proceedings (at paras.2.1–2.23). In Part 9 it provides
a summary of its recommendations for a new reliability test for admissibility
(paras.9.1–9.14). In Part 8 it explains how its recommendations could have averted the
miscarriages of justice highlighted in its consultation paper (8.9–8.30).
In criminal proceedings, Practice Direction CPD V Evidence 19A explains that common law
is the source of criteria for admissibility of expert evidence but that nothing precludes
the court from assessing the reliability of the expert opinion proffered by reference to
the eight factors listed in para.19A.5 and in 19A.6 (the latter of particular importance for
evaluation of the reliability of scientific evidence). You should note that the factors are
those drafted by the Law Commission and that no rule obliges courts to use these factors
but the Practice Direction actively encourages them to do so.
In Luttrell [2004] EWCA Crim 1344 the Court of Appeal stated:
The preferred view, and in our judgment the proper view, is ‘that so long as a field [of
expertise] is sufficiently well-established to pass the ordinary tests of relevance and
reliability, then no enhanced test of admissibility should be applied, but the weight of the
evidence should be established by the same adversarial forensic techniques applicable
elsewhere’.
As observed by Thomas LJ in Reed and Reed [2009] EWCA Crim 2698, ‘unless the
admissibility is challenged, the judge will admit’ the expert evidence (at [113]).
1. When is expert evidence admissible?
2. According to Roberts and Edmond, what are the shortcomings of the Law
Commission’s proposals? (Further reading required to answer this question).
Activity 10.2 – Key case analysis: Luttrell

Read Luttrell [2004] EWCA Crim 1344 and answer the following questions.
a. What two conditions must be satisfied for the admission of expert evidence?
b. What ‘further test’ for admissibility did the defence argue should apply?
c. According to the Court of Appeal, when, if at all, should the reliability of the
expert evidence be considered?
d. What general principle did the Court derive from cases such as Turnbull (1976)?
e. According to the Court, what warning from the judge does lip-reading evidence
require to be given to a jury?
Activity 10.3
Read the factors listed for reliability evaluation in paras.19A.5 and 19A.6 of CPD v
Evidence 19A: Expert evidence. The factors may be useful to you in everyday life in
evaluating research you come across in the media. Practise using the factors to
evaluate the reliability of expert evidence you come across in your readings.
10.3 The presentation and evaluation of expert evidence
Core text
¢ Choo, Chapter 12 ‘Expert evidence’, Section 2.7 ‘DNA evidence’.
Essential reading
¢ Cases: Doheny, Adams [1997] 1 Cr App R 369, CA; South [2011] EWCA Crim 754;
Atkins [2009] EWCA Crim 1876; Dlugosz [2013] EWCA Crim 2; Reed and Reed [2009]
EWCA Crim 2698; Garmson [2009] EWCA Crim 2698, [2010] 1 Cr App R 23.
The distinction between the evaluation of sufficiency of reliability by the judge at the
admissibility stage, and its assessment by a jury, is explained in Reed and Reed [2009]
EWCA Crim 2698 at [111].
There is a risk that a jury will defer too readily to the opinion of an expert, particularly
if their opinion is described as scientific evidence, and the courts have shown that
they are willing to exercise control over the choice of words an expert may use in
expressing their opinion to the jury (see South [2011] EWCA Crim 754).
10.4 Judicial directions to the jury
Essential reading
¢ Cases: Atkins [2009] EWCA Crim 1876; Luttrell [2004] EWCA Crim 1344; Dlugosz
[2013] EWCA Crim 2; Doheny, Adams [1997] 1 Cr App R 369, CA.
Beyond special warnings in certain areas there are no special rules in recognition of
the particular risks associated with expert evidence. Particular difficulties arise in
relation to presentation of DNA evidence (Doheny, Adams [1997] 1 Cr App R 369).
Further reading
opinion’ (2010) 14 IJEP 166.
Activity 10.4
‘Members of the jury, you have heard the Crown’s DNA evidence. The defendant’s
DNA matches the blood sample found at the scene of the crime. Even though only
one person in a million will have a DNA profile that matches that found at the scene
of the crime, the defendant does. You may think that makes his defence of an alibi
extremely difficult to believe.’ What would be wrong with this direction to the jury,
assuming it is the only direction given by the judge about the DNA evidence?
Essential reading
¢ Goldacre, B. Bad science. (London: Fourth Estate, 2009) [ISBN 9780007284870],
Chapter 14 ‘Bad stats’ (available on the VLE).
¢ Case: Barry George [2007] EWCA Crim 2722.
Further reading
(2013) Crim LR 810.
Is there a risk that courts might admit expert evidence that lacks any probative
value?
Essential reading
¢ Ward, T. ‘“A new and more rigorous approach” to expert evidence in England
and Wales?’ (2015) 19(4) IJEP 228.
¢ Robertson, A. Reed (2010) 9 Crim LR 716.
Further reading
opinion’ (2010) 14 IJEP 166.
¢ Roberts, A. ‘Drawing on expertise: legal decision-making and the reception of

expert evidence’ (2008) Crim LR 443.
¢ Dennis, I. ‘Tightening the law on expert evidence’ (2015) 1 Crim LR 1.
Further listening
BBC Radio 4 Fingerprints on Trial (2011): Available at www.bbc.co.uk/programmes/
b00z5zyc
For many years fingerprint evidence was assumed to be infallible. In recent years
we have seen that experts can reach contradictory opinions on whether there is a
match between two different fingerprints, demonstrating that fingerprint evidence is
evidence of opinion, not fact, and is therefore fallible.
There is little judicial guidance, and no consistent judicial guidance, on how sufficiency
of reliability is to be determined for expert evidence at the admissibility stage (though
see Reed for guidance in relation to the reliability of DNA evidence). Doubt has been
cast on trial judges’ ability to evaluate the reliability of scientific evidence on account
of their lack of training in scientific methodology (Forensic science on trial, Seventh
Report of Session 2004–05, HC 96-I, para.173).
Gary Edmond criticises the courts for refusing to exclude unreliable expert opinions
and expert opinions of unknown probative value, and for choosing instead to leave
incriminating opinion to the trial and the fact-finder. Edmond believes English judges
place too much faith in a range of formal protections (such as defence lawyers, cross-
examination, opposing experts and judicial directions), the lay jury and appellate
courts.
Activity 10.5
a. Read this news story and pick out the criticisms made of the law and practice in
this area.
http://news.bbc.co.uk/2/hi/programmes/panorama/1426720.stm
b. In 2015 BBC Radio 4 produced the series ‘Forensics in Crisis’. All three
programmes in the series will be of interest to you and the third in the series,
‘Crisis in Court’ is of direct relevance to the course. Below is a list of questions on
the programmes to help you to get the most relevant points out of them.
Listen to the BBC Radio 4 programme ‘Crisis in Court’: www.bbc.co.uk/

programmes/b05stg0j
u In what ways do courts sometimes misinterpret the probative value of the

opinion of the expert scientist? Why is it not surprising that courts often do
this?
u How does the Italian case of Amanda Knox illustrate the dangers of DNA
evidence?
u According to Professor Paul Roberts, when do problems arise with forensic

science (he mentions three dangerous practices)?
Listen to the BBC Radio 4 programme ‘Crisis in Research’:

www.bbc.co.uk/programmes/b05r3tf1#play
u What problems did the 2009 Report by the National Academy of Science
highlight?
u Why was the publication of the report ground-breaking? How relevant are its
findings to the United Kingdom and why?
No feedback provided to (b).

be able to:
u explain who may qualify as an expert witness
u explain in what circumstances expert evidence will be admissible
u explain the difficulties juries may have in evaluating expert evidence
u identify the risks associated with expert evidence
u explain, apply and evaluate recent reforms.

‘The challenges posed by expert evidence are immense and multiple but the
courts are well equipped by the law to deal with them. The principal impediment
to justice in this area is the refusal of the courts to use the legal tools available to
them.’
Discuss.

First, you need to demonstrate your knowledge and understanding of the
problems posed by expert evidence; you might focus in depth on a small number
of problems, or more broadly on several. Second, you need to demonstrate a sound
understanding of the law in this area. Again, you might focus in depth on particular
rules (perhaps rules that you can demonstrate could have been better applied
to the problems you have identified, or new developments that demonstrate
good application of the rules) or more broadly on the culture of laissez-faire and
the extent to which this is changing. Ward’s writings will be very helpful to you
in answering this question. There is no correct answer to the question, your aim
should be to demonstrate understanding and critical evaluation.
Feedback to activities
Contents
About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
About feedback
Feedback to activities is given to help you learn more about the material you have
been studying. It gives you answers to – or guidance on answering – the activities.
A few activities do not have feedback, because it was considered unnecessary. Please
do not bypass the work in the activities and go straight to the feedback.
Evidence Feedback to activities page 141
Chapter 2
Activity 2.1
Feedback: see p.129 of ‘Theories of fact finding’.
Activity 2.2
The police investigator has obtained incriminating evidence by behaving unlawfully.
You need to consider the arguments in favour and against admission of the unlawfully
obtained evidence. The extract from Roberts and Zuckerman should have helped you
to answer this question. A consequentialist justification would be concerned with the
consequences of admitting or excluding the evidence. A rights-based argument would
focus on the importance of due process and on the right of every citizen to dignity and
respect of their rights. An argument based on the legitimacy of the verdict would focus
on the importance of maintaining public confidence in the criminal justice system.
You may have come up with a range of arguments. The following are only examples of
what you could have used:
a. Admission of the evidence will assist in the conviction of an offender and so

incapacitate a potentially dangerous offender.
b. Exclusion of the evidence will discourage police investigators from behaving

unlawfully.
c. Griggs’s right to privacy and right to silence have been breached. The appropriate
remedy for these breaches is for the evidence obtained in consequence to be
excluded.
d. On the one hand you could argue that public trust in the criminal justice system
would be undermined if a guilty person went free on account of police error. On
the other, you could argue that public trust in the criminal justice system will be
undermined if the state is allowed to rely on evidence it has obtained unlawfully.
Chapter 3
Activity 3.1
Roberts emphasises the political importance of the prosecutorial burden in the
context of a democratic society committed to liberal values and individual rights. The
prosecutor represents the state (‘R v’). Placing the burden on the prosecutor protects
the individual from the power of the state: criminal sanctions are a deprivation of
liberty and must be justified. The state also has more power in terms of resources to
investigate and to set the terms under which an individual is charged.
Activity 3.2
Activity 3.3
The ECtHR ‘requires States to confine them within reasonable limits which take into
account the importance of what is at stake and maintain the rights of the defence’. In
relation to how this balance is to be achieved, note in particular the judgments in DPP
ex p Kebilene [2000] 2 AC 326 and Sheldrake v DPP; A-G’s Reference (No 4 of 2002) [2004]
UKHL 43.
Activity 3.4
a. ‘(1) What does the prosecution have to prove in order to transfer the onus to the
defence? (2) what is the burden on the accused – does it relate to something which
is likely to be difficult for him to prove, or does it relate to something which is likely
to be within his knowledge or [...] to which he readily has access? (3) what is the
nature of the threat faced by society which the provision is designed to combat?’
(HL at 386 and 848–49.)
b. Lord Hope elaborates in the section immediately following the above, ‘Striking
the balance’. Re (1) he asks whether the prosecution onus ‘is a light one’. [The
offence is: possession of an article in circumstances which give rise to a reasonable
suspicion that his possession is for a purpose connected with the commission,
preparation or instigation of an act of terrorism.] He argues that ‘reasonable
suspicion’ must be proved, which is not easy. Re possession, he also finds no
problem (but see Roberts on Kebilene in Further reading) with s.16A3(b) which
allows possession to be inferred if the article was on the premises that the accused
occupied or habitually used.
(2) ‘It is not immediately obvious that it would be imposing an unreasonable
burden on an accused who was in possession of articles from which an inference
of involvement in terrorism could be drawn to provide an explanation for his
possession of them which would displace that inference.’ This is qualified by
considerations of ease or difficulty of proof for the accused.
(3) Lord Hope discusses the nature of the threat posed by terrorism and
emphasises that the aim of the PTA 2006 was to prevent such acts happening.
For your further consideration: (i) why does it matter whether the burden bears only
a light burden? (ii) How is legislation designed to prevent crime different from other
sorts of criminal legislation?
Activity 3.5
a. (i) Possession of a controlled Class A drug (ii) with intent to supply and (iii) that
he or she knew that the package contained something. Further reflection: do you
consider this a ‘light’ burden?
b. See para.20 of the judgment. Or read the statute.
c. Lord Steyn argued that placing a legal burden on the defendant would oblige
the court to convict even if it concluded that the accused’s story was as likely to
be true as not. See [38]. In such a situation the accused would not have proved
their defence on the balance of probabilities, which would be the appropriate
standard. To prove something on the balance of probabilities means proving that
it is more likely than not (see the section on the standard of proof). See para.36:
‘The basis for this justification is that sophisticated drug smugglers, dealers and
couriers typically secrete drugs in some container, thereby enabling the person
in possession of the container to say that he was unaware of the contents. Such
defences are commonplace and they pose real difficulties for the police and
prosecuting authorities.’ So, it is important to note, with reference to Lord Hope’s
third question on balancing in Kebilene (see above), that a legislative aim may also
include making it easier for the prosecution to gain convictions in the face of some
specific problem associated with the crime in question.
See also in Lambert, Lord Hope at [69]: ‘I do not think that it is surprising that
Parliament made that choice in view of the difficulties which the prosecution
would face if it had to prove in every case that the accused knew that the thing was
a controlled drug’.
d. (i) s.28 deals ‘directly with the situation where the accused is denying moral
blameworthiness’; (ii) the maximum prescribed penalty for the offence in question
is life imprisonment; (iii) the distinction between constituent elements of the
crime and defensive issues will sometimes be unprincipled and arbitrary;
a transfer of a legal burden amounts to a far more drastic interference with
the presumption of innocence than the creation of an evidential burden of
the accused. The former requires the accused to establish their innocence. It
necessarily involves the risk that, if the jury are faithful to the judge’s direction,
they may convict where the accused has not discharged the legal burden resting
on them but left the jury unsure on the point. This risk is not present if only an
evidential burden is created, ‘Indeed it obliges the court to convict if the version of
the accused is as likely to be true as not.’ (See [35]–[38].)
e. The words ‘to prove’ in s.28(2) were read (under s.3(1) of the HRA 1998) as if the
words used in the subsection were ‘to give sufficient evidence’; similarly with the
words ‘if he proves’ in s.28(3). [94] In other words, the legal burden was read down
to an evidential burden.
f. Lord Hutton agreed that the 1971 Act was prima facie in tension with Article 6(2)
but found no contravention in fact, either because (i) reverse onus clauses were
justified as a measure in response to the ‘threat posed by drugs to the welfare of
society’ and compatible with Strasbourg jurisprudence; or in the alternative, (ii)
the accused had had a fair trial and would have been found guilty, in accordance
with Article 6, regardless of the judge’s direction on the burden of proving
knowledge of the drugs.
Activity 3.6
a. Section 92(5) of the Trade Marks Act 1994. See para.19 of the judgment.
b. See para.12 of Lord Nicolls’ judgment (it is extracted in Choo on p.32). In the next
paragraph he identifies factors (4) and (6) (in para.12) as compelling reasons why
the s.92(5) defence should place a persuasive burden on the accused. He adds
that it is matter of ‘comparative ease’ for the accused to ‘raise an issue’ about
his honesty as such. ‘[O]verall it is fair and reasonable to require a trader, should
need arise, to prove on the balance of probability that he honestly and reasonably
believed the goods were genuine.’
c. No feedback provided but see below on regulatory offences.
Activity 3.7
Activity 3.8
Chapter 4
Activity 4.1
Here are examples of each:
a. Wholly exculpatory statement
Detective: I have reason to believe that you are responsible for the robbery at the West
of England Bank in Mayfair on 3 March this year.
Suspect: I had nothing to do with it. I was on holiday in Skegness with my sister on that
date.
b. Mixed statement
Suspect: It’s true that I drove the getaway car. But I was only involved because Charlie
threatened to kill me if I didn’t help him.
c. Wholly inculpatory statement
Suspect: Yes, it’s true. I wish I hadn’t done it now.
Activity 4.2
McGovern (1990) is a good example of a confession being excluded despite its likely
actual truth. Choo suggests that if the judge were required to assess the actual
reliability of the confession it would be a usurpation of the role of the jury.
Activity 4.3
See s.76A of PACE 1984.
Activity 4.4
Remember that wrongful refusal of access to legal advice does not make a confession
automatically inadmissible. Defence counsel will have to use this as the foundation for
an argument that the confession should be excluded under s.76(2)(b). The wrongful
refusal of access to legal advice will be regarded as ‘something said or done’, and
counsel will argue that any confession by their client to an offence of this kind would
be unreliable in the absence of proper legal advice.
Chapter 5
Activity 5.1
a. Any fact relied on in their defence (see s.34). The House of Lords has held that
a defendant relies on a fact or matter in their defence not only when they give
or adduce evidence of it but also when counsel, acting on the defendant’s
instructions, puts a specific and positive case to prosecution witnesses, as opposed
to asking questions intended to probe or test the prosecution case. See Webber
[2004] UKHL 1.
b. No feedback provided.
Activity 5.2
Activity 5.3
Chapter 6
Activity 6.1
The case law provides that there is no strict formula for such warnings, so long as the
need for caution is made clear to the jury. You could use s.10-2 of the Crown Court
Compendium, Part I for guidance.
Activity 6.2
There could be any number of reasons; one obvious example might be not wishing
to reveal what they were doing at the time because they don’t want their partner,
employer or friends to know.
Activity 6.3
‘We are satisfied that in cases which depend wholly or mainly on eyewitness evidence
of identification there is a special risk of wrong conviction. It arises because the value
of such evidence is exceptionally difficult to assess; the witness who has sincerely
convinced himself and whose sincerity carries conviction is not infrequently mistaken.
We have found no forensically practicable way of detecting this sort of mistake.’
Activity 6.4
See para.3.12 of Code D of PACE 1984. A circumstance in which the obligation would
not apply would be where an identification procedure would serve no useful purpose
– one example might be where the witness knows the person identified very well and
the defendant agrees that the witness knows them well (but alleges that they are
mistaken in their identification).
Chapter 7
Activity 7.1
a. The defendant’s defence was that sexual intercourse took place with the
complainant’s consent and that he believed that she consented. According to the
statement of facts and issues it was the defendant’s case that:
on the occasion in question, [viz. 14 January 2000] the complainant initiated

consensual sexual intercourse and that this was part of a continuing sexual
relationship. The consensual sexual relationship covered a period of approximately
three weeks prior to 14 June 2000; and in particular he had consensual sexual relations
with her, including sexual intercourse, at his flat on occasions between 26 May 2000
and 14 June 2000. The last instance was approximately one week before 14 June 2000
[19].
b. Counsel for the defendant applied for leave to cross-examine the complainant
about the alleged previous sexual relationship between the defendant and the
claimant and to lead evidence about it [20].
c. See s.41 of the YJCEA 1999.
d. Rose LJ recorded a concession by the Crown, rightly made in his view, that the
questioning and evidence in relation to the complainant’s alleged prior sexual
activity with the defendant was admissible under s.41(3)(a) of the 1999 Act in
relation to the defendant’s belief in the complainant’s consent: see s.1 of the Sexual
Offences (Amendment) Act 1976. It followed that the judge’s ruling in entirely
excluding such evidence was wrong [23].
e. That the alleged previous sexual relationship is inadmissible on the issue of

consent.
f. May a sexual relationship between a defendant and complainant be relevant to

the issue of consent so as to render its exclusion under s.41 of the Youth Justice and
Criminal Evidence Act 1999 a contravention of the defendant’s right to a fair trial?
g. That complainants who allege that they have been raped should not be harassed
unfairly in court by questions about their previous sexual experiences and that to
allow such harassment is very unjust to the complainant.
h. In order to avoid the assumption too often made in the past that a complainant
who has had sex with one man is more likely to consent to sex with other men and
that the evidence of a promiscuous complainant is less credible [3].
i. It may lead the jury to accept that consensual sex once means that any future sex
was with the complainant’s consent. That is far from being necessarily true and the
question must always be whether there was consent to sex with this accused on
this occasion and in these circumstances [4].
j. Between the interests of protecting the complainant and of ensuring a fair trial for
the accused.
k. No. There is a risk that women will be afraid to complain and as a result that men
who ought to be prosecuted will escape [1].
l. Section 3 of the Human Rights Act 1998 requires that, ‘[s]o far as it is possible to do
so, primary legislation…must be read and given effect in a way which is compatible
with the Convention rights’.
m. I was initially tempted to think that the words ‘at or about the same time as the
event’ could be given a wide meaning – certainly a few hours, perhaps a few days
when a couple were continuously together. But that meaning could not reasonably
be extended to cover a few weeks which are relied on in the present case and I
consider in the event that even if read with Article 6 they must be given a narrow
meaning which would not allow the evidence or cross examination in the present
case or in other than cases where the acts relied on were really contemporaneous.
[12]
n. In my view s.3 requires the court to subordinate the niceties of the language
of s.41(3)(c), and in particular the touchstone of coincidence, to broader
considerations of relevance judged by logical and common sense criteria of
time and circumstances. After all, it is realistic to proceed on the basis that the
legislature would not, if alerted to the problem, have wished to deny the right
to an accused to put forward a full and complete defence by advancing truly
probative material. It is therefore possible under s.3 to read s.41, and in particular
s.41(3)(c), as subject to the implied provision that evidence or questioning which
is required to ensure a fair trial under Article 6 of the Convention should not be
treated as inadmissible. [45]
o. The effect of the decision today is that under s.41(3)(c) of the 1999 Act, construed
where necessary by applying the interpretive obligation under s.3 of the Human
Rights Act 1998, and due regard always being paid to the importance of seeking
to protect the complainant from indignity and from humiliating questions, the
test of admissibility is whether the evidence (and questioning in relation to it) is
nevertheless so relevant to the issue of consent that to exclude it would endanger
the fairness of the trial under Article 6 of the Convention. If this test is satisfied the
evidence should not be excluded. [46]
p. The result of such a reading would be that sometimes logically relevant sexual
experiences between a complainant and an accused may be admitted under
s.41(3)(c).
On the other hand, there will be cases where previous sexual experience between
a complainant and an accused will be irrelevant (e.g. an isolated episode distant
in time and circumstance). Where the line is to be drawn must be left to the
judgment of trial judges. On this basis a declaration of incompatibility can be
avoided. If this approach is adopted, s.41 will have achieved a major part of its
objective but its excessive reach will have been attenuated in accordance with the
will of Parliament as reflected in s.3 of the 1998 Act. [45]
q. As a matter of common sense, a prior sexual relationship between the complainant

and the accused may, depending on the circumstances, be relevant to the issue
of consent. It is a species of prospectant evidence which may throw light on
the complainant’s state of mind…What one has been engaged on in the past
may influence what choice one makes on a future occasion. Accordingly, a prior
relationship between a complainant and an accused may sometimes be relevant to
what decision was made on a particular occasion. [31]
r. An isolated episode distant in time and circumstances [45].
s. A recent close and affectionate relationship between the complainant and the
defendant [152].
t. Although not an issue before the House, my view is that the 1999 Act deals
sensibly and fairly with questioning and evidence about the complainant’s sexual
experience with other men. Such matters are almost always irrelevant to the issue
of whether the complainant consented to sexual intercourse on the occasion
alleged in the indictment or to her credibility. [30]
u. See [79]. Note that ‘honest belief’ would now be ‘reasonable belief’ as a result of
the Sexual Offences Act 2003.
Activity 7.2
Chapter 8
Activity 8.1
a. Is the evidence relevant to a fact in issue? Should the evidence be admitted?
In deciding whether evidence in a given case should be admitted, the judge’s
overriding purpose will be to promote the ends of justice. But the judge must
always bear in mind that justice requires not only that the right answer be given
but also that it be achieved by a trial process which is fair to all parties.
b. The following were mentioned in O’Brien v Chief Constable of South Wales Police: the
risk of a wrong result if the evidence is excluded; wider considerations such as the
public interest; the potential probative value of the evidence against its potential
for causing unfair prejudice; the burden which admission would lay on the
resisting party: the burden in time, cost and personnel resources; the lengthening
of the trial, with the increased cost and stress inevitably involved; the potential
prejudice to witnesses called upon to recall matters long closed, or thought to be
closed; the loss of documentation; the fading of recollections; whether admission
of the evidence will distort the trial and distract the attention of the decision-
maker by focusing attention on issues collateral to the issue to be decided.
Activity 8.2
a. You should have found this example in Lord Steyn’s judgment:
A middle-aged man is charged with theft from his employers. He has no previous
convictions. But during the trial it emerges, through cross-examination on behalf of a
co-defendant, that the defendant has made dishonest claims on insurance companies
over a number of years.
b. In her article on Hunter, Monaghan (2015) notes ‘Until the decision in Hunter, it
seems that there has been a practice of defence counsel coaxing a good character
direction out of a trial judge, despite the defendant being of bad character (and
in contravention of Lord Steyn’s “absurdity principle”), by ensuring that the
defendant adduces the [bad character] evidence himself [under s.101(1)(b) CJA
2003]. The premise being: (a) “The defendant’s criminal past relates to other types
of offences, so he is less likely to have committed this offence” (propensity limb),
and (b) “The defendant has been honest about his criminal past, so he must be
telling the truth” (credibility limb).’
Activity 8.3
a. Paragraph 29.
b. Paragraph 37.
c. The discussion starts at para.40 ‘Issue two’. (i) The statement of Miss Hayden-Smith
and CRIS reports Ms F-H’s ‘irritating’ behaviour was not reprehensible because it
did not show a sufficient element of culpability of blameworthiness or disposition
towards misconduct. (ii) Paragraph 42: Mr Dildar’s statement is discussed in
para.42. It is bad character evidence concerning Ms F-H because it amounts to her
having made false allegations. Note the application of s.109(2) in respect to Mr D’s
statements and the CRIS reports. (iii) See para.43 for Ms Bean’s evidence.
d. Paragraph 41: the evidence of Miss Hayden-Smith was not relevant at common law
because it would not have affected Ms F-H’s credibility in relation to the charges
against the appellant (Scott). Why not? Although not spelled out here, try to work
this out for yourself.
e. Paragraph 44. The complainant’s credibility was a key matter in issue in the
proceedings. Do you think there is a ‘typo’ or slip where the case report here refers
to s.100(1)(a)?
f. Paras.47–51 offer a useful application of the factors under s.103(c).
i. Paragraph 45: Dyson LJ was wrong to say that judges’ admissibility decisions
concerning ‘substantial probative value’ under s.100(1)(b) are a matter of
discretion, especially ‘a relatively generous band’ of discretion; rather they are
a matter of judgment ‘which can be attacked if it is clearly wrong’. The point
is that, if such rulings are discretionary, they could be challenged on appeal
only if Wednesbury is unreasonable. Regarded, as a matter of judgment, s.103(c)
identifies relevant factors to take into account. [Note: the list of factors in
s.103(c) is not exhaustive and permits of judges taking other relevant factors
into account, but in turn the judge would need to make this explicit (s.10 CJA
2003). While this evidently gives judges some leeway, it is not discretion in the
formal sense because it is reviewable on appeal.]
ii. Paragraphs 53–55 discuss the trial judge’s decision to exclude the evidence
because it would form ‘a very dangerous distraction to the jury’ as an ‘other
relevant factor’ under s.103(c). The Court of Appeal agrees that it is legitimate
to consider this factor (that is, the risk of ‘satellite litigation’) but disagrees in
that the trial rejected all the evidence on this basis, whereas the evidence of
Mr Dildar, supported by that of Miss Bean, should not be considered ‘satellite
litigation’ ‘in the sense that they were so divorced from the principal issue in
the case that they thereby lacked “substantial probative value” in the context
of this case’ (at [54]).
g. Paragraphs 55–56: The false allegations that Mr Dildar and Ms Bean claimed had
been made by Ms F-H ‘would have had substantial probative value in relation
to a matter which was of substantial importance in the context of the case as
a whole, viz. the central issue of the complainant’s credibility and therefore
consent’. Considering para.55, do you agree that alleged previous false allegations
concerning a third party are of ‘substantial probative value’ in respect to a matter
of substantial importance in the context of the case as a whole?
h. Paragraph 57, Issue six.
i. Section 112(3)(b) of the CJA 2003.
ii. According to BT, MH [2002] 1 WLR 632, false statements in the past by a
complainant about sexual assaults are not sexual behaviour within the terms
of s.41(1) of the YJCEA 1999 [57].
iii. There has to be ‘a proper evidential basis’ evidence that prior complaints were
actually false (Murray [2009] EWCA Crim 618) and V [2006] EWCA Crim 1901 [35].
V holding RD [2009] EWCA Crim 2137 to be consistent [58] was also relevant.
Paragraphs 59–61 in Scott apply these findings as to the rules concerning
admissibility.
i. Paragraphs 64–66, Issue Seven speak for themselves. Especially in light of the
prosecution evidence, do you agree with the decision? If not, go back and look
above to see whether, if you were the judge, you would have been able to exclude
the evidence of Mr Dildar and Ms Bean or is your disagreement based solely on
the view taken by the Court of Appeal as to how hearing this evidence (and Ms
F-H’s response in cross-examination) would potentially have affected the jury’s
decision?
Activity 8.4
a. Read s.100 again. What is the matter in issue in the proceedings in relation to
which these convictions might be relevant? Is the matter in issue of substantial
importance in the context of the case as a whole? How is the defence likely to
develop an argument in relation to each conviction to support the contention that
the conviction has ‘substantial probative value’ in relation to the matter in issue?
Don’t forget to take into account subss.(3) and (4) as well. What guidance can you
take from the case law?
b. There are two possible gateways: s.101(1)(c) (important explanatory evidence) and
s.101(1)(d) (relevant to an important matter in issue between the defendant and
the prosecution). What arguments are there in support of each? How might the
defence argue for exclusion in relation to s.101(1)(c)? Would such an argument be
likely to succeed? How might the defence argue for exclusion in relation to s.101(1)
(d)? Would such an argument be likely to succeed?
c. Why does Maurice’s counsel want to cross-examine? (Look at the nature of

Norman’s defence and that of Maurice.) Which gateway is appropriate? Clearly,
s.101(1)(e).Will it work? This depends on whether the court decides that the nature
or conduct of Norman’s defence is such as to undermine Maurice’s defence. If
s.101(1)(e) is potentially available, is evidence of the convictions relevant to the
question of whether Norman has a propensity to be untruthful? (Does it matter
that these are not offences involving deception, or that one of them is spent?
How did Norman plead on the earlier occasions? Did he give evidence? Is a
previous conviction of any kind still relevant to credibility?) If cross-examination is
permissible in principle, does the judge have a discretion to exclude it?
d. Obviously a s.101(1)(f) situation has arisen. What, in principle, is the prosecution

entitled to do? Has the judge any discretion about it? How can the defendant
escape from the situation they have created? See s.105(6).
e. Has Sam attacked the store detective’s character? If he has, is any escape route
available?
Chapter 9
Activity 9.1
a. John would not be seeking to adduce this evidence to establish the truth of
Darren’s alleged statement (that John had killed Darren’s mother). He would
be seeking to adduce evidence of the statement having been made in order to
explain why he thought Darren was about to attack him. It is not therefore hearsay
evidence.
c. No feedback provided.
Activity 9.2
Arguably, this is an implied assertion and does not engage the rule against hearsay. We
can infer from the statement that Alex had bloodstains on his carpet but the purpose
of the maker of the statement (Alex) was not to cause Charlene to believe that he had
bloodstains on his carpet. Section 115 of the CJA 2003 excludes it from the definition of
hearsay.
Activity 9.3
a. Even if it can be shown that such steps as it is reasonably practicable to take, have
been taken to find the customer who spoke to Fiona (s.116(2)(d)), that customer
can’t be identified. So the condition in s.116(1)(b) is not satisfied, and the evidence
is therefore inadmissible under s.116.
b. Can you argue that Gerald does not himself give evidence ‘through fear’? If so,
use s.116(2)(e). Remember that the leave of the court is necessary, and this will be
governed by s.116(4). How would you develop an argument for admissibility based
on the considerations set out in that subsection?
c. In principle, this statement would be admissible under s.116(2)(d). The defence

would have to show, on the balance of probabilities, that such steps as it is
reasonably practicable to take have been taken to find Harry, but that he cannot be
found. The defence might not be able to satisfy this burden if the prosecution can
adduce evidence to show that Dave paid Harry to disappear. Alternatively, if their
evidence is strong enough, the prosecution could rely on s.116(5).
Activity 9.4
a. No feedback provided.
b.
i. See para.2 of the judgment.
ii. See para.7 of the judgment.
iii. See paras.17 and 18 of the judgment.
iv. See para.33 of the judgment.
Chapter 10
Activity 10.1
Expert opinion evidence is being admitted too readily with insufficient scrutiny. Find a
case that illustrates how unreliable evidence is adduced by the prosecution as a result
of insufficient scrutiny.
Activity 10.2
a. See paras 32 and 33 of the judgment.
b. See para.34: ‘the appellants argued that evidence should not be admitted unless
it passes a further test, that the evidence can be seen to be reliable because the
methods used are sufficiently explained to be tested in cross-examination and so
to be verifiable or falsifiable’.
c. The Court did not accept it is a condition of admissibility. The Court said that
reliability would fall to be considered under s.78 of the Police and Criminal
Evidence Act 1984 and that reliability, unless of relevance to the two conditions
of admissibility mentioned in paras.32 and 33 of the judgment, was a question of
weight and not admissibility.
d. See para.42 of the judgment.
e. See para.44.
Activity 10.3
Activity 10.4
It invites the jury to commit the ‘prosecutor’s fallacy’. It does not explain the relevance
of the random occurrence ratio in line with the direction outlined in Doheny (1997).
See Choo, Chapter 12 ‘Expert evidence’, Section 2.7 ‘DNA evidence’.

Activity 10.5
a. Two examples are:
u the reluctance of lawyers to challenge expert opinion
u the fact that expert opinion will suffice to support a conviction and may be
completely flawed.
There might not be anything surprising to an evidence student about the

second point because the same could be said of any form of evidence.
The issue is whether expert evidence is particularly prone to error so as to
necessitate a requirement for corroboration. Do you think it is? You might
find it helpful to take another look at the law on eyewitness identification
evidence; it provides that weak identification evidence will not suffice to
support a conviction. The Turnbull warning is also interesting and was referred
to in the lip-reading case (Luttrell). Beyond special warnings in certain areas
such as lip reading (see Luttrell) there are no special rules in recognition of
the particular risks associated with expert evidence. Do you think greater use
should be made of such warnings? If so, why?

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Evidence

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Evidence

u Beverley Brown, PhD

Published by: University of London

1 Introduction to the study of evidence law . . . . . . . . . . . . . . . . 1

3 Burden and standard of proof . . . . . . . . . . . . . . . . . . . . . . 21

4 Confessions and improperly obtained evidence . . . . . . . . . . . . . 39

6 Hazardous witness testimony and judicial warnings to the jury . . . . . 61

7 Evidence of a complainant’s extraneous sexual behaviour in trials of

9 The rule against hearsay . . . . . . . . . . . . . . . . . . . . . . . . 109

10 Expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

1. Demonstrate a critical awareness of the relationship between the theoretical

3. Construct an argument for or against the relevance of a particular piece of

4. Explain and critically evaluate judicial warnings to the jury.

LEARNING OUTCOMES: SKILLS

6. Articulate well-argued potential solutions to a range of complex evidential topics

7. Reflect on learning, identifying areas for improvement;

BENCHMARK FOR LEARNING OUTCOMES

c. Confessions and improperly obtained evidence. Using and excluding confessions.

e. Hazardous witness testimony and judicial warnings. Makanjuola warnings. Directions

f. Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences.

i. Expert evidence. Admissibility. Evaluation of the law (including judicial directions)

LEARNING AND TEACHING

The Laws virtual learning environment (VLE)

u a module page with news and updates;

u a complete version of the module guides;

u past examination papers and reports;

The Online Library

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u links to important websites.

Summative assessment is through a three-hour and 15 minute unseen examination.

¢ Core statutes on evidence 2021–22 (Palgrave Macmillan).

1.1 Studying the law of evidence . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . 3

1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The key to the successful study of evidence is understanding, not rote-learning.

1.1 Studying the law of evidence

Evidence law is a mixture of principles, rules, guidelines and discretions.

1.2 A suggested approach to study

1.2.1 Core texts and Essential reading

¢ Emson, R. Evidence. (Hampshire: Palgrave Macmillan, 2010) fifth edition

¢ Munday, R. Evidence. (Oxford: Oxford University Press, 2019) 10th edition

¢ Roberts, P. and A. Zuckerman Criminal evidence. (Oxford: Oxford University Press,

Read the law reports in:

u Criminal Law Review

u Criminal Appeal Reports.

1.2.2 How to proceed

Working through a chapter of the module guide

You will be provided with options for Further reading.

5. At the end of each chapter is a ‘Quick quiz’ consisting of multiple‑choice questions.

Activities and self-assessment

Sample examination questions

u What legal issues does this question relate to?

u What do I need to answer it, in terms of theoretical and procedural approaches,

u What is an appropriate, balanced solution to the question?

1.2.3 Ten golden rules for studying evidence

8. Practise answering the Sample examination questions. Begin by looking up as

1.2.4 Study time