West Law Report

Witnesses anonymity in murder trial

Posted in Witnesses anonymity by mrkooenglish on June 25, 2008

Dozens of murder cases at risk after collapse of hitman trial“, The Times, June 25, 2008

Ministers are determined to rush through emergency laws to halt the collapse of criminal cases throughout England and Wales after senior judges ruled that granting witnesses anonymity could make trials unfair.

Jack Straw, the Justice Secretary, was in talks with officials last night after the halting of a trial at the Old Bailey and with an estimated 40 other murder cases at risk.

One legal source estimates that 550-600 applications have been or are being made by witnesses for anonymity in pending criminal trials. Lawyers are also set to prepare appeals in a number of cases where evidence depended on anonymous witnesses.

BBC: Witness law ‘to change’

Posted in Witnesses anonymity by mrkooenglish on June 21, 2008

21 Jun 2008

(2 min)

The government has vowed to change the law to allow anonymous witnesses in some court cases.

Ineffective Assistance of Counsel for Capital defendant

A leading case summery of Harvard Law Review: Schriro v. Landrigan (2007) (11 pages)

Sixth Amendment — Ineffective Assistance of Counsel

Capital defendants are not always cooperative or repentant, even at sentencing hearings determinative of their fates. Some death penalty defendants may refuse to aid in investigation of mitigating evidence, or they may actively obstruct presentation of it during the sentencing phase. Others may flaunt the purposeful nature of their killings, their lack of remorse, or their willingness to be put to death for their crimes. Courts must be aware, however, that this behavior may be due to mental illness or caused by physical and emotional abuse, a genetic disorder, or drug addiction — characteristics that may reduce a defendant’s moral culpability.

Last Term, in Schriro v. Landrigan, the Supreme Court upheld a state court’s finding that a defendant who refused to allow the presentation of mitigating evidence from his family members was not prejudiced by his counsel’s failure to investigate fully or to present other sorts of mitigating evidence. Thus, the Court held, the defendant was not entitled to an evidentiary hearing on the claim of ineffective assistance of counsel. The Court failed to analyze the context of Landrigan’s refusal, including unique concerns about particular mitigating evidence and the defendant’s background — factors that may have explained his statements and behavior. Moreover, the Court did not consider the defendant’s refusal in the context of its waiver precedents or the importance of mitigating evidence. Courts should not expand a limited refusal to present only some mitigating evidence into a complete refusal to present any mitigating evidence, nor should they allow recalcitrant behavior at sentencing to justify eradication of a defendant’s constitutional right to effective assistance of counsel.

Mitigating Evidence and Death Penalty

A leading case summary of Harvard Law Review: Abdul-Kabir v. Quarterman (2007) and Brewer v. Quarterman (2007) (11 pages) The two cases were consolidated.

Eighth Amendment – Death Penalty – Consideration of Mitigating Evidence

The maxim that “death is different” has long guided the Supreme Court’s death penalty jurisprudence. In the landmark case of Lockett v. Ohio, a plurality of the Court declared that the Eighth Amendment mandates that a capital sentencing body be permitted to “consider[], as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In Penry v. Lynaugh, the Court applied the Lockett principle to a death sentence under a Texas statute mandating death if the sentencing body found that the defendant had acted deliberately and was likely to be dangerous in the future. Under that statutory regime, the jury could not necessarily consider and give effect to the mitigating force of the defendant’s mental retardation and history of childhood abuse.

Last Term, in Abdul-Kabir v. Quarterman and Brewer v. Quarterman, the Supreme Court addressed the constitutionality of two defendants’ death sentences under that same statute. The Court held that the Texas Court of Criminal Appeals (CCA) had misapplied clearly established law by refusing to invalidate the sentences when the sentencers were not permitted to give meaningful effect to the defendants’mitigating evidence: childhood neglect and impulse-control disorder in Abdul-Kabir,9and mental illness, childhood abuse, and substance abuse in Brewer. The Court therefore concluded that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief was warranted.

At first sight, the decisions in Abdul-Kabir and Brewer seemed to signal a departure from precedents granting wide deference to state court decisions where the relevant clearly established law was broad and general. In fact, however, the law that the Court invoked in these cases was much narrower than the opinions superficially suggest. Therefore, the Court’s selection of a fact-specific, highly determinative holding as the relevant clearly established law explains how the strictness of the Court’s review of the CCA’s decisions is reconcilable with precedent.

Ear-print evidence probative only if minutiae identifiable

Posted in Admissibility, relevance, Times Law Report by mrkooenglish on May 15, 2008

From The TimesMay 16, 2008

Ear-print evidence probative only if minutiae identifiable
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Kempster

Before Lord Justice Latham, Mrs Justice Swift and Mr Justice Foskett

Judgment May 7, 2008

Evidence of those experienced in comparing ear-prints was capable of being relevant and admissible but such comparison would provide information which could identify the person who had left it on a surface only when sufficient minutiae could be identified and matched.

The Court of Appeal, Criminal Division, so held in a reserved judgment, allowing an appeal by Mark Kempster, on a reference by the Criminal Cases Review Commission, against, inter alia, a conviction of burglary for which he was convicted on March 30, 2001 at Southampton Crown Court (Mr Recorder Ignatius Hughes and a jury) and imprisoned for ten years.

Mr Michael Mansfield, QC and Mr Alan Masters for the defendant; Mr Paul Garlick, QC for the Crown.

LORD JUSTICE LATHAM, giving the judgment of the court, said that the appeal against conviction had been brought on the ground that relevant fresh evidence might have undermined the expert prosecution evidence, that the recovered ear mark from the scene of the alleged crime, matched the ear-print provided by the defendant.

The police had recovered an ear-print from the fixed window pane to the side of the rear kitchen window of the premises which had been forced. The expert who gave evidence at the trial contended that the ear-print found on the window pane matched ear-prints subsequently taken from the defendant.

The defendant had based his application against conviction on the fresh evidence of a report, dated June 20, 2006, by another expert, who, as a result of his extensive work in the field, understood the physiology and technology involved in ear-print comparisons.

He concluded that the prints used in the appellant’s case, were not of sufficient quality to conclude safely that there was a match; the gross anatomical features of the ear visible in the crime scene mark, failed to accord with the reference points provided by the appellant.

In the court’s judgment, ear-print comparison was capable of providing information which could identify the person who had left such a print on a surface, where minutiae could be identified and matched. Minutiae were small anatomical features such as notches, nodules or creases in the ear structure.

Where the only information came from gross features, the main cartilaginous folds, there was likely to be less confidence in such a match, because of the flexibility of the ear and the uncertainty of the pressure which would have been applied at the relevant time.

Although the ear-print at the scene was consistent with having been left by the defendant, the gross features provided too imprecise a match to justify a guilty verdict.

Solicitors: Birds, Wandsworth; Crown Prosecution Service, Hampshire.

Admission of relevant bad character evidence

From The TimesMay 16, 2008

Admission of relevant bad character evidence
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Nguyen

Before Lord Justice Dyson, Mr Justice Maddison and Sir Richard Curtis

Judgment March 18, 2008

Where the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge, that could not have such an adverse effect on the fairness of the proceedings that the court ought not to admit such evidence.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing an appeal by Thu Van Nguyen against his conviction on October 2, 2006 in the Central Criminal Court, before Judge Goddard, QC, and a jury, of murder.

Mr Edward Rees, QC, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Simon Denison for the Crown.

LORD JUSTICE DYSON said that on two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day.

The Crown was granted leave to adduce evidence of the first incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged: see section103(1)(a). The defendant was convicted.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The premise on which the appeal was based was wrong; accordingly, the appeal would be dismissed.

Solicitors: Crown Prosecution Service, Old Bailey Trials Unit.


Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.


(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.


Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Auld, May and Longmore LJJ
May 18, 2007

Brain damage – Breach of duty of care – causation – Clinical negligence – Expert evidence – Hospitals – Failure of nursing staff to monitor vital signs – Judge’s findings of fact on causation


The appellant (S) appealed against the dismissal of his negligence claim against the respondent hospital (B) in respect of personal injuries sustained after a routine knee operation. Following the successful performance of the operation, during which S was given a general anaesthetic, S was taken to a recovery area, where it was noted that his oxygen saturation levels had dropped to 90 per cent. S was nonetheless discharged to a hospital ward, where he remained overnight. S was able to self-administer morphine. At 06.00, the nursing staff observed that S was asleep and, as he had not slept for most of the night, decided not to wake him to carry out vital signs monitoring. He subsequently suffered severe and permanent hypoxic brain damage which the parties agreed had resulted from regurgitated gastric contents being aspirated into his lungs. Because S was in a deep sleep and had been affected by the morphine, his gag reflex had been impaired. The judge below had found that in deciding not to perform vital signs monitoring, the nursing staff had exercised reasonable clinical judgment, in accordance with a reasonable body of nursing opinion. Furthermore, based on the opinion evidence of a preferred anaesthetist expert, the judge had found that even if the nurses had carried out the vital signs observations, they would have been able to rouse S, but the aspiration and resulting brain damage would still have occurred.

S submitted that

  1. (1) the cause of the injury could be traced back to negligence in the recovery room following the operation, when oxygen saturation was measured at 90 per cent, but no remedial action was taken. But for that initial negligence, S would not have been regarded as a routine patient and his levels of consciousness would have been monitored;
  2. (2) the judge had been wrong to accept a nurse’s evidence that it was reasonably justifiable nursing practice to have left S to sleep without monitoring, which should have included observations on his levels of consciousness and rousability. That monitoring would have detected a reduced level of consciousness in time to take remedial action before the brain-damaging aspiration occurred. Based on the principles propounded in Bolitho (Deceased) v City and Hackney HA [1998] AC 232, the judge should have rejected the nurse’s opinion as not having a logical basis, and therefore not representing a body of responsible opinion, as the risks of not performing those observations had far outweighed any risk of performing them;
  3. (3) the judge had erred in failing to recognise that there were degrees of rousability, and that S’s consciousness should have been assessed with this in mind. Specifically, the judge had been wrong to accept and prefer the opinion evidence of the expert anaesthetist, that although the morphine had suppressed the gag and cough reflex, it would not have made S unrousable. S’s level of consciousness could be judged from the fact that he did not cough or wake up when he vomited.


Whether the judge had been entitled to rely on the opinion evidence of an anaesthetist expert witness in finding that there was no causative link between the omission and the injury.

HELD (appeal dismissed)

(i) The judge had been entitled to find, on the evidence, that S’s oxygen saturation must have recovered on the ward during the night, and well before 06.00.

(ii) The lack of vital-signs monitoring by nursing staff did not involve questions of diagnosis and treatment. The risk had been that S might not in fact have had a satisfactory normal pulse, temperature or blood pressure, but the judge had accepted that, at the relevant time, on the evidence they would have been within normal limits. As the risks involved were not of the kind that fell for consideration under the principles set out in Bolitho, they were therefore irrelevant. The nurse’s opinion that it had been within proper nursing competence to leave S without making those observations had a logical basis, in that it had been reasonable to decide to let a patient who had had little sleep since his operation continue to sleep. It was plain that the nurse had weighed up the risks and benefits.

(iii) It was clear that the judge had dealt with degrees of rousability. The judge’s finding as regards S’s rousability after 06.00, which was critical to the issue of causation and to his conclusions, had a firm evidential base, and had not been shown to be wrong. The judge had been entitled to accept the expert anaesthetist’s opinion as (a) the judge had been entitled to regard him as in general the more persuasive of the expert anaesthetists; (b) expert witnesses from other disciplines had deferred to the anaesthetists on the critical issues in the instant case; (c) the preferred expert had experience of the effect of morphine in the quantities taken by S on consciousness and levels of sedation. He was therefore entitled to say, based on his experience and opinion, that the amount of morphine taken by S would not make a patient such as him deeply unconscious; (d) if morphine did suppress the gag and cough reflex, it was not illogical for it to do so when the effect on a patient’s consciousness was less than profound, because a reflex was an action or function that occurred apart from consciousness; (e) the preferred expert’s evidence was supported by that of another expert, who had referred to S’s breathing rate as indicative that his consciousness was not severely depressed.

John Grace QC and Laura Davidson (instructed by Boyes Turner) for the appellant. Susan Rodway QC and Vikram Sachdeva (instructed by DLA Piper Rudnick Gray Cary) for the respondent.

Wife’s statement can be admitted in evidence

Posted in Admissibility, Criminal Justice Act, Times Law Report by mrkooenglish on May 14, 2008

From The TimesMay 14, 2008

Wife’s statement can be admitted in evidence
Regina v L (Evidence of wife) in the Court of Appeal, Criminal Division
Court of Appeal, Criminal Division

Published May 14, 2008

Regina v L (Evidence of wife)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Reasons May 7, 2008

There was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

The Court of Appeal, Criminal Division, so held in a reserved judgment, giving reasons for dismissing, on April 16, 2008, an appeal by L against his conviction at Mold Crown Court (Judge Merfyn Hughes, QC and a jury) on October 25, 2007, on five counts of indecent assault and four counts of rape.

Mr John Philpotts, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Karl Scholz for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that while the appellant was in custody, the police had approached his wife and she had made a short statement.

At trial the prosecution had called the wife as a witness. However, the judge had ruled that she was not a compellable witness against her husband, under section 80 of the Police and Criminal Evidence Act 1984, and the wife had declined to give evidence.

The prosecution had then applied to admit the wife’s statement to the police under section 114 of the Criminal Justice Act 2003 and the judge had ruled that he had power to do so and that it was in the interest of justice that he should do so.

Should the police have told the wife that she could not be compelled to give evidence against her husband before taking a statement?

The appellant submitted that where the police would be obliged to caution a husband before taking a statement from him, they should tell his wife that she could not be compelled to give evidence against her husband before taking a statement.

Their Lordships could see no basis for such a requirement. The need to caution a suspect arose from the fundamental principle that a person could not be required to give evidence that might incriminate himself. The policy against compelling a wife to give evidence against her husband was not the same.

To caution a wife before taking evidence from her could inhibit the investigation of crime. The policy that prevented a wife from giving evidence against her husband did not require such a limitation upon the powers of investigation of the police to be implied.

Accordingly, there was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

Having said that, it did not follow that there might not be circumstances in which the police would be well advised to make it plain to a wife that she need not make a statement that implicated her husband.

If a question was raised as to whether it was in accordance with the interests of justice to admit a wife’s statement, the prosecution’s hand was likely to be strengthened if it could show that the wife made her statement voluntarily, having been expressly informed that she was under no obligation to make it.

Should the wife’s statement have been excluded automatically or as a matter of discretion?

The appellant submitted that it was tantamount to compelling a wife to give evidence against her husband if, when she refused to testify orally, her statement was adduced as hearsay evidence, so that to adduce evidence in such circumstances offended against the spirit, if not the letter, of section 80 of the 1984 Act.

However, compelling a wife to give evidence was not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 did not pose a legal bar to the admission of such evidence.

Nevertheless, it could well be objectionable if the police took a witness statement from a wife, intending to call her to give evidence, and then sought to place it in evidence when the wife stated that she did not wish to give evidence against her husband.

There was an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence that she did not wish to give. In any such case, whether it was just to admit the statement had to depend upon the facts.

In the present circumstances, their Lordships could see no injustice in admitting the statement.

Solicitors: Crown Prosecution Service, Wrexham.

Evidence elicited in safety interviews is admissible

From The TimesMay 8, 2008

Evidence elicited in safety interviews is admissible
Court of Appeal, Criminal Division

Published May 8, 2008

Regina v Ibrahim and Others

Before Sir Igor Judge, President, Mr Justice Forbes and Mr Justice Mackay

Judgment April 23, 2008

Evidence obtained during safety interviews held with a defendant in the absence of his solicitor was admissible at his subsequent trial subject to the ordinary principles governing a fair trial and excluding unfair evidence.

The Court of Appeal, Criminal Division, so held when refusing applications by Muktar Said Ibrahim, Yassin Omar, Hussein Osman (aka Hamdi) and Ramzi Mohamed, for leave to appeal against their convictions on July 9, 2007, at Woolwich Crown Court (Mr Justice Fulford and a jury) of conspiracy to murder, for which they were sentenced on July 11, 2007, to life imprisonment with minimum terms of 40 years.

Mr George Carter-Stephenson QC and Mr Ali Naseem Bajwa for Ibrahim; Mr Michael Wolkind, QC and Mr Stephen Vullo for Omar; Mr James Lewis, QC and Mr James O’Keefe for Osman; Mr Mark Milliken Smith, QC and Miss Frida Hussain for Mohamed, all defence counsel assigned by the Registrar of Criminal Appeals; Mr Nigel Sweeney, QC, Mr Max Hill and Miss Alison Morgan for the Crown.

THE PRESIDENT, giving the reserved judgment of the court, said that on July 21, 2005, bombs were detonated in the London Underground transport system and on a bus in Hackney but the main charges failed to explode. The bombers made their escapes.

The immediate objective of the investigation by the police was directed to protecting the public from any further violent incidents by finding and detaining the bombers. The four defendants were arrested, together with 14 other individuals suspected of terrorism offences.

A police superintendent directed that, in accordance with paragraph 8 of Schedule 8 to the Terrorism Act 2000, interviews with the defendants to secure public safety should take place in the absence of their solicitors.

In safety interviews, a suspect would be interviewed to obtain information which might help the police to protect life and prevent serious damage to property.

At the trial of the defendants, and on their appeals, the question arose whether the results of such interviews could be used as evidence against them. It was clear that the admission of safety interviews or their fruits in evidence at a subsequent trial, was not precluded by the legislative structure.

At the safety interviews, the defendants had made demonstrably untrue assertions which failed to suggest the defences, later advanced at trial, that the bombs were hoaxes. The judge had ruled that it was clear beyond doubt that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence.

He also said that it was sometimes necessary for a suspect to have the assistance of a lawyer before he could understand and describe a complicated defence, but that was not the instant case.

Access to lawyers had been denied for a relatively short period and in no case for more than eight hours. Their Lordships could find nothing to support the conclusion that the judge’s decision to admit the interviews in evidence at trial was in any way flawed.

Solicitors: Crown Prosecution Service.


Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950


The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.


Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.


Posted in character, Jury, Res Gestae, s101 Criminal Justice Act, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Divisional Court
Dyson LJ, Henriques J
December 14, 2007

Bad character – Jury directions – Res Gestae – Unsafe convictions – Failure to direct jury – Appropriate bad character direction – s. 101(1)(c) Criminal Justice Act 2003 – s. 101(1)(d) Criminal Justice Act 2003


The appellant (L) appealed against a conviction following trial by jury for rape. L had been in a relationship with his victim (V) and they had a young child together. V alleged that L had twice forced her to have sexual intercourse. At trial the Crown applied for leave to adduce bad character evidence and attached to the application a copy of an earlier statement made by L.

The judge granted the application pursuant to the Criminal Justice Act 2003 s. 101(1)(c) and s. 101(1)(d). Evidence was allowed concerning four alleged examples of L’s previous violent and aggressive behaviour. L addressed all four allegations, mainly by way of denial. In his summing up the judge included the incidents in his narrative of the evidence together with L’s responses.

However he decided not to bring the jury back for a further specific direction as to how to approach and utilise the evidence adduced pursuant to the bad-character ruling as the ruling had served simply to add to the evidence as to the history of the relationship. L submitted that the judge wrongly regarded each of the incidents as in effect part of the res gestae so that their admission did not call for specific directions. He further contended that the failure to give a direction to the jury as to their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.


Whether the judge’s failure to give an appropriate direction to the jury in relation to the approach that should be adopted when considering evidence adduced of L’s bad character rendered the resulting conviction unsafe.

HELD (appeal allowed)

The judge was in error and there should have been

  1. a bad-character direction encompassing particular elements such as identification of the incidents, evidence of which had been adduced pursuant to L’s bad character ruling;
  2. a direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them to the criminal standard of proof;
  3. a direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
  4. a direction as to the potential significance of any incident that had been proved, in the instant case that the incidents might throw light on the relationship between V and L and thus bear upon the potential for consent on her part to his sexual advances;
  5. a warning against necessarily according the incidents any significance if an alternative construction served to cast doubt on the construction contended for by the Crown and also against attaching too much weight to the evidence.

The original application was unspecific and of a “scattershot” nature invoking the full, long witness statement without condescending to the specifics. The ruling was similarly non-specific. Had the identification of the bad character evidence been specific from the outset, then minds would more readily have been focused on what was required by way of jury direction and the matter would not have been for consideration as an afterthought. The bad character direction rendered the conviction unsafe and the conviction was quashed.

Julia Smart (instructed by Criminal Appeal Office) for the appellant. J Dawes (instructed by Crown Prosecution Service) for the respondent.