I. THE SPIRIT OF ENGLISH LAW

1. A few historical landmarks.

2. The witness and the police. Police powers and duties.

a. Police organisation and power.

b. The taking of witnesses’ statements. Questionnaire.

c. Availability of prosecution evidence to the defence.

d. Problem of statements tendered in evidence without witnesses being called.

II. WHO MAY TESTIFY : GENERAL CONDITIONS

1. Persons

2. Rules

3. Number of witnesses

III. EXAMINATION OF TESTIMONIES AND THE CRITICISM : CROSS-EXAMINATION

A) Witnesses in general

1. Privileges

a. Non disclosure in the interest of the State.

b. Privilege from self-incrimination.

c. Legal professional privilege.

d. Loss of legal privilege in public interest or to establish innocence.

e. Loss of privilege when a third party happens to be in possession of privileged documents.

f. Marital privilege.

g. Loss of any privilege.

2. Hearsay

3. Cross-examination

a. Testing the accuracy and memory of witnesses.

b. Previous inconsistent statement.

c. Hostile witness.

d. Bias. Finality rule.

e. Previous convictions.

f. Character. Discretion of the judge.

g. Evidence of physical or mental condition tending to unreliability.

- Problem of experts well-known for their opinions and used for that.

102

4. Right of the court to call other witnesses. Last minute witnesses.

B) The accused as witness

1. Rights and privileges.

a. Silence.

b. Unsworn evidence.

c. Loss of privilege.

d. Statutory protection.

2. Evidence of misconduct : previous convictions and similar fact rule.

3. Evidence of good character.

4. Accused’s imputations on prosecution.

101

5. Accused’s evidence against co-accused.

106

CONCLUSION

108

ANNEX

112

BIBLIOGRAPHY

118

THE SPIRIT OF ENGLISH LAW

1. A few historical landmarks

English law is based on case-law. Its aim is to say how such a particular case should be resolved, and subsequently to establish a set of rules and procedures.

The distinction between public law and private law does not exist.

The reasons for this are historical. In the fifteenth century, the local and seigniorial jurisdictions which applied the local customs, found themselves dispossessed de facto by the Royal Courts that represented the public law applicable to the whole kingdom : it was the « common law ».

Progressively, private individuals chose to address themselves, for their suits to be dealt with more efficiently, to the Royal Courts. The latter, in order to fight against the opposition of the feudal lords, had to extend their competence « on the case », whilst remaining within the bounds of former procedures. They had for a long time been representing jurisdictions of exception, and it was necessary to convince the Royal Court that the cases which were submitted to it fell within its competence.

The common law has only elaborated very gradually, « through an enlargement of the framing of the existing procedures, from case to case. » 1 « English jurists have been led to focus their attention more on procedure… than on the essence of law »2. A series of techniques might allow « the schemes of the adversary to be thwarted and bring litigation to an end. » 3

When justice was not done, suitors turned towards the King through petition. In the name of morality the King might exceptionally admonish and sanction his subjects, until the latter should mend their ways.

When petitions grew more numerous, they were then examined by the Chancellor who sifted out rules of equity in civil matters : inquisitorial, written procedure without jury, conceived on the same lines as canon law, and brought about as a « remedy » to the rigidity of the common law.

The coexistence of these two courts did not go without difficulty, chiefly in the seventeenth century with Charles I Stuart, whose abusive authority was opposed by parliament, which suppressed some jurisdictions and limited the power of the Court of Equity (in civil matters).

1 David R. Le Droit Anglais. Paris. Presses Universitaires de France, 1965. 4th edition, p.12.

2 Ibid, p.13.

3 Ibid, p.13.

In the nineteenth century, these two courts were amalgamated into a single one, « The Supreme Court of Judicature ». Though ruled by the same judges within the same court, they remained two different systems : « The waters do not mix ». 4

The twentieth century, with the creation of a welfare State, conceded more and more importance to legislation, that is to say to « statute law », which gave birth to « administrative tribunals », new in the spirit of English law. This represents an opposite approach to the common law, « where reasonable solution is sought in the core of each case, » 5 relying on precedents. « Parliament’s increasing incursion into economical and social affairs extended the need for statutes… but the basic of our law remains the common law, and if all the statutes were repealed we should still have a legal system of sorts; whereas our statutes alone would not provide a system of law but merely a set of disjointed rules. »6

Why such a difference in essence?

England has been very little marked by the Roman invaders, who disappeared as early as the fourth century. With the Saxons, monarchy was sacred, but there existed the WITAN, a counsel of the wise, and the high judicial court, who could depose a bad king. Justice was ensured by the shire court, an assembly to which the village sent its representatives, contrary to the Roman system by which justice was rendered by a magistrate representing the central power.

A public debate, that did not appeal to a central bureaucracy, allowed a compromise to be found, and thus to avoid civil wars.

Under the Normans, the feudal system developed from local defence needs, and it carried out justice in each province. It was under Henry II that the unity of the kingdom was born, and that the Royal Court of Justice was held in all the provinces by the provincial « circuits » (1166). Local customs then found themselves blended into the common law melting-pot, and the central court registered precedents. Then these judges selected the best customary laws, applied them outside their counties of origin. Moreover, they created and put into force new rules, « justifying their rulings by asserting that they were derived from the ‘general custom of the Realm' »7.

Order was established collectively by the citizens – Henry II had restored the « fyrd » (or militia), a system of collective responsibility. The King himself had to give proof of submission to his barons and King John signed the Magna Charta (1215) that engaged him to respect the vested interests of the community. « If he transgresses them, loyalism ceases to be a duty and his subjects have a right to revolt. » Magna Charta contained the elements of the future statute of Habeas Corpus, chiefly of the Habeas Corpus Act under Charles II, which prevented arbitrary imprisonment.

4 Lord Devlin, orally quoted by a lawyer.

5 David R. Le Droit Anglais, p 19.

6 Smith K. and Keenan D. English Law, London, Pitman, 1982, 7th ed, p 9.

7 Smith and Keenann, English Law, p 2.

Henceforth, contrary to the Roman system of government, judicial authority never enjoyed supreme and unlimited powers. Kings do not make the law, the law controls them. Throughout English history, sovereigns have had to respect the rights of their subjects, or they ran the risk of being dethroned. « No man is above the law », and Habeas Corpus is the Foundation stone on which individual liberty is built7b : « No man can be imprisoned without legal justification ». We will note, later on, the importance of the Bill of Rights (1689), which restricts the royal authority.

Then, in the eighteenth century, the doctrine of the separation of powers as stated by Montesquieu became accepted as the foundation of political liberty, and the courts claimed complete independence of the legislative. It could be argued, however, that what Montesquieu had seen corresponded more to a theoretical model since, for example, the High Chancellor is a member of the government.

This liberty and this respect of the individual against any superior and abusive power belong to English tradition and education, whilst the organisation of justice in this country aligns itself with the spirit of dignity and liberty.

No overwhelming power, no authority representing some central power : English law is in direct contrast to Roman law. In order to understand English law better, let us go a little further and compare it with French law, which originates from Roman law.

In France, in 1810, the latter was embodied in the institution of the Juge d’Instruction who « has summoned before him any person whose statement appears useful to him »8 and who alone still judges the opportuneness of confrontations. He is not obliged to confront witnesses with a defendant before their audition in the Cour d’Assise9. Moreover the police, who direct the case, and the experts, appointed by the tribunal – who are often satisfied with judging from records only – are not easily criticised since they act in the name of the State.

This conception of the State is quite different in France and in England. In France the idea of State represents an abstract, all-powerful machinery which has prerogatives on citizens belonging to it. The police, representing the State, are in actual fact, in the citizens’ minds, entrusted with this authority. The consequence is twofold : this all-powerful State that the police incarnate may lead to abuse, if not to arbitrariness; citizens do not feel themselves any longer responsible for the deeds of their fellow citizens.

In England, the police protect the individual who trusts them. Any policeman acts in his capacity as a good citizen, and any citizen feels responsible for his own acts to the community.

At present, there is no public prosecutor in England : one citizen will accuse another of having acted badly, before a judge who will then judge them both on an

7b Goodhart A.L, The spirit of English law, Jerusalem, the Hebrew University, 1953.

8 Chambon Pierre, Le Juge d’Instruction, Paris, Dalloz, 1972, p.236.

9 Chambon P., Le Juge d’instruction, p.256.

equal level. The judge’s sole responsibility is to see that the case is fairly conducted, that law is enforced, and that if the evidence which is produced is not sufficient to condemn, the accused should be released and acquitted.

What force can ensure the birth of an authoritarian state in which pure law, grounded on logic, expresses itself in codes and in which justice is in the State’s service, what force can ensure a government where the State is in the service of justice?

In the first case, the law is written in the form of a code for it is conceived as a model of social behaviour, so that society might run as smoothly as possible. « The guarantee of social conditions is ensured by the coercive power of the State »10, and the rulers themselves are not controlled by the law, which is certainly the reason why they are perceived as dominators.

For English people, government is « a form of trust »10b and the model of a fair society is given by the law of God. Here is an extract of a passage from Henry Bracton’s book « De Legibus et Consuetudinibus Angliae », written in the thirteenth century, which is particularly representative of this view : « Ipse autem rex non debet esse sub homine sed sub deo et sub lege, quia lex fecit regem. Attribuat igitur rex legi, quod lex attribuit ei, videlicet dominationem et potestatem. Non est enim rex ubi dominatur voluntas et non lex. »11

Submission to values that transcend man, justice, dignity and liberty : here is to what English law has pertained.

In the Temple, London’s law district, small chapels stand in the middle of the inns of court, and we are reminded of God’s commandments : » Thou shalt not bear false witness against thy neighbour. » On entering the different courts, we read on the fronton, just behind the judges’ seats : « Dieu et mon droit ». God is always referred to in English justice for He is a God of Love and Justice. Justice is sacred and it is rendered before God. To give one’s testimony in court is partaking of Divine Justice, and is a sacred duty for on it depends the future of the accused : his reputation, his profession, and sometimes his life. A witness is someone who has a direct personal knowledge of facts at which he was present, or of facts within his knowledge (the word witness comes from the Anglo-Saxon verb to witan, and to wit or to know), and his testimony is the oral or written account of what he has seen or heard or knows. Thus when there is a litigation, the prosecutor and the accused are naturally the first witnesses.

10 Garraud R. Précis de Droit Criminel, Paris, 1934, 15th edition, Librairie du Recueil Sirey, p.273

10b Goodhart A.L. The Spirit of English Law, Jerusalem, The Hebrew University, 1953.

11 Bracton H. De Legibus et Consuetudinibus Angliae, London, MDCCCCXV, Oxford University Press, p. 33 (11). Bracton was Dean of Exeter and a Justice Itinerant of Henry III; he wrote the first recognized exposition of common law (after Ranulph de Glanvill in 1187). – editor’s note –

As in the Hebraic tradition, and contrary to Roman law, justice does not rest on the indictment of suspects, but on proof given in evidence and its examination. The testimony is inherent in the long tradition of oral law. The emphasis is placed on oral rather than written evidence and when documents are presented to the jury, they are explained in such a way as to make certain that they are understood.

Evidence must lead to proof or contribute to its making. This is a moral duty and it is so important that the sacred formula used is : « to carry the burden of proof ».

Thus it is not for the accused to exculpate himself, but for the prosecution (except in rare cases) to prove what it asserts, according to a three-stage protocol: examination, cross-examination, re-examination, to be dealt with hereafter (principally cross-examination).

Let us examine to what extent English organisation of justice reflects and above all puts into practice the conception of justice by English people.

Among the different bodies involved, the police are of extreme importance, for any action is initiated by them. « The English system is the only one in Europe where the interrogation of suspects, the interviewing of witnesses, the gathering and testing of scientific evidence, the selection of evidence to be set before the court, the decision as to what charges shall be brought and the conduct of the prosecution, may be entirely under the control of the police » 12.

How far do the police partake in the spirit of justice and make citizens feel like cooperating with them? What are their powers and their duties?

2 The Witness and the Police. Police Powers and Duties.

a) Police organisation and power

It must be realised that the English individual rarely makes use of his power to launch prosecutions. In practice, it takes time and much money. Moreover, this right is restricted by the necessity to obtain the assent of either the judge, the Attorney-General or of the Director of Public Prosecutions – or further, of a governmental department or a public body. Thus the Englishman will generally address himself to the police; but he will deal personally with cases that the police neglect, in so far as they are considered as minor by them : shoplifting, certain forms of racialism (in jobs), domestic violence, assault by neighbours.

In each town there is « the local force », composed of police officers and chief police officers. The force is headed by the Chief Constable in each district. This man is responsible for policy and its implementation, but he must inform himself, or ask for advice or give accounts, if it is necessary, to the Director of Public Prosecutions, a government official responsible to the Attorney General, (himself responsible to the

12 Justice, The Process in Egland and Wales, London, The Eastern Press Ltd of London and Readind, 1970, p.6 (c).

Home Office, responsible to Parliament for any police action that might be criticised), who in turn acts in the name of the Attorney-General. The Director of Public Prosecutions himself would like to be relieved of many of the less serious cases. The vast bulk of offences – 90% of cases – are in practice covered by the local police forces, chiefly in the area of criminal law, and under the control of the Chief Constable.

In some large cities, salaried lawyers are employed to undertake the police prosecutions, but elsewhere full-time police prosecutors take responsibility for this duty.

The custom is that the police officer makes the investigation, takes up witnesses’ statements, and decides whether to prosecute or not, with the aid of a solicitor. He himself conducts the prosecution, being sometimes witness and advocate at the same time, as in summary cases or less serious offences tried summarily at the Magistrates’ court (this is quite unknown in Scotland : the police cannot initiate the prosecution or be advocate. The Lord Advocate does it with his staff, and is quite independent of the police. Furthermore, the rules of prosecution are well established.).

The police may also employ private solicitors to act on their behalf and give them advice; several solicitors have become regular prosecuting agents for the police. In the 1960’s, out of 45 police authorities in England and Wales, 32 had a prosecuting agent.

Thus, whether they themselves are advocates or clients of lawyers who conduct the proceedings on their behalf, the police always remain at the initiation of prosecution, the institution of proceedings, and even the conduct of the prosecution, because solicitors are consulted once a person has been charged, or a summons issued.

Furthermore, the police do as they want with their solicitors’ advice : they can further prosecution even though they were advised neither to commence it nor go on with it. Sometimes it is the reverse : the police can choose not to start proceedings when they ought to. They enjoy absolute discretion whether or not to prosecute offenders. Moreover, it is solicitors who choose counsel, and therefore it is very often the police, in an indirect way.

As a general rule, the court will not interfere with that discretion, though they have the powers to intervene if police powers have been improperly exercised. « The judges control the conduct of trials and the admission of evidence against persons on trial before them; they do not control or in any way institute or supervise police activities or conduct. »13

13 Barnard D., The criminal Court in Action, London, Butterworths, 1974, p.32.

In spite of all, there must exist and there are, internal and external checks; but these are rather loosely conceived : they above all seek to guarantee both the interrogated individuals. It is less a question of law and more one of recommendations, to help the police carry out their task properly.

Police powers are great, their formation eclectical but very little juridical. « The power to arrest, search and interrogate are confined within specific and known limits. Such limits are designed to preserve the individual’s personal freedom, and to ensure that, if he is involved with the police, they shall behave towards him with proper respect and fairness, and shall be accountable for their actions. »14

The 1964 s.48 Police act recognises that police questioning of suspects must be controlled, and renders the police authority liable to civil proceedings for damages and the individual officer liable to prosecution if serious police malpractice can be proved : physically assaulting suspects to obtain a damaging admission through intimidation, for example. Thus, according to present English law, the answers and statements of any person are admissible only in so far as they are voluntary. They must not have been obtained by « fear of prejudice or advantage excited or held out by any person in authority, or by oppression »15.

The law however, accepts that the manner of questioning might still be oppressive and Lord MacDermott, in his address to the Bentham Club (1968), described such questioning as that « which by its nature, duration or other attendant circumstances (including the fact of custody), excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent ».16

Judges of the Queen’s Bench have laid down the Judges’ Rules, to be used by the police as guides in their investigation and interrogation. But these rules have no force of law. Therefore, the testimonies that are obtained in breach of the rules are not unacceptable as a matter of law, though they can be rejected at the discretion of the judge, later, during the trial. Generally, there must be circumstances showing that « the breach of rules might have affected the voluntary nature of the statement ».17

There is something which sounds a little contradictory here, for in other respects English law punishes without any ambiguity false evidence or evidence given under improper pressure, even though the evidence is directed to the establishment of the truth. « Obviously, attempting to persuade a witness to tell the truth, or what one believes to be the truth, is not an offence, provided that the means of persuasion used are not improper. And there is nothing improper about reasoned argument, nor presumably about pointing out to a witness who (it is believed) is proposing to lie, the immorality of his conduct. But the use of threats is improper and inadmissible. Obtaining an untrue testimony under improper

14 Ibid, p.34

15 Judges’ Rules, Home Office Circular N°3 of 1964.

16 Lord MacDermott quoted by David Barnard, The Criminal Court in Action, p. 39.

17 Ibid, p. 39.

pressures is called « perverting the course of justice » – though the expression « the course of justice » begins with proceedings in court -, and is an offence akin to perjury ».18 Consequently, from the study of police behaviour and duties, we gather that proceedings are penalised, even when they are employed with the aim of arriving at the truth; this is a very serious offence, since they prevent justice from being done : « obstruction », « contempt of court », or other legal terms covering bad conduct.

No individual may treat his fellow man badly. Authority, if it does so, will be sanctioned, and its testimony runs the risk of being rejected : here we are very far from a society founded on the cult of power. Authority is submitted to the same rules as the individual, and must set the example.

England therefore presents itself as a country which gives recognition to justice and injustice.

The judge has the discretion to dismiss confessions which were obtained unfairly, even though they were voluntary and obtained without any breach of the judges’ Rules. This discretion nevertheless observes great flexibility because English justice (which naturally covers Wales) is always looking for an equilibrium between the prosecutor and the person charged. Thus, a persistent offender who appealed because he was not brought in time before the magistrate, and that subsequent to his detention he confessed to holding stolen money, did not win his case. He had however been properly cautioned at each stage of his questioning by the police that each new statement could be taken as evidence against him, and his defence was that he thought he would obtain immunity in exchange for information that he might give the police. It is not so easy to bend the rules. English justice analyses men’s statements, and the belief of the accused, who was « well-educated » and accustomed to police formalities19, could not be considered by the court as being the consequence of « hope of advantage by persons in authority »20.

b) Police taking of witnesses’ statements. Questionnaire.

According to the Judges’ Rules, witnesses « shall always be asked whether they wish to write down themselves what they want to say »21. « Whenever the police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters : he shall not prompt him. When the writing of the statement of the police officer is finished, the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. « When he has finished reading it he shall be asked to write and sign or make on the following Certificate at the end of the statement : « I have read the above statement and I have been told that I can

18 Smith and Hogan, Criminal Law, London, Butterworths, 1975.

19 Example of a case given by a member of Justice.

20 Judges’ Rules. H.O.C. 3, 1964. IV (a)

21 Ibid.

correct, alter, or add anything I wish. This statement is true. I have made it of my own free will. »22 If the person making the statement cannot read or refuses to read it, the officer who has taken it down shall read it over to him, and ask him whether he would like to correct, alter or add anything and to put his signature or make his mark at the end. The police officer shall then certify what he has done. »23

As we can see, there is seemingly little room for statement distortion on the part of the police if they follow this guide scrupulously.

Most lawyers we spoke to accepted that police practice is to write down themselves what witnesses say during the interview. Moreover, one of several police officers can write up their notebooks together in identical terms after the interview. Then it will be extremely difficult to challenge their evidence in the witness-bow. If defence counsel alleges any king of conspiracy, the accused’s record can be disclosed. Police officers are thus in practice too easily tempted to rely on « verbals » as a means of securing convictions.

A High Court judge that we interviewed in the Central Criminal Court in London, told us that more often that was thought, police-men « lied in order to convict people when they believed them to be guilty ». According to this High Court judge, the best solution seems to be « the introduction of tape-recordings to record what was said in the police station by the police themselves ». Moreover, he foresees the possibility of tampered tapes, and thus advocates that there should be « a master tape that cannot be removed, and a copy that can be removed ». This, however, does not answer the police argument that tapes cannot be a solution when one knows that witnesses or suspects may insidiously wish « stop twisting my arm » to be recorded.

Even better as an unimpugnable means would be the use of the more advanced video technology, rendering the whole interview crystal clear, which is as it must be, in serious cases, where statements are likely to be contested. So that the interview might be absolutely fair on either side, the witness and suspect would then be given the opportunity of explaining what happened or why they acted in such a manner with adequate recording of their respective stories.

The police generally object to such modern means of interviewing, on the grounds that they may inhibit questioning, be subject to misinterpretation and cause a great deal of administrative work due to the necessary transcription. Figures show, however, that ninety per cent of incriminated people plead guilty in summary cases, and forty per cent in cases sent for trial, thus limiting the transcript to the contested evidence.

Text-books sift out the laws and rules that must be followed by the police to conduct the investigation; they specify how, at each stage of the interrogation of a suspect the police must respect the rights of the individual they intend to charge and rigorously assure the exactitude of the statements. But they do not propose

22 Judges’ Rules. H.O.C. 3. 1964. IV (e).

23 Ibid. IV (f).

any model of procedure of examination of testimonies to be adopted, which would closely monitor the subject while keeping an absolutely impartial attitude, without the risk on the one hand of warping facts by any hasty misinterpretation or on the other, of influence on the part of eventual witnesses.

Consequently, we have been led to ask them the following questions, under the form of a written questionnaire, the answers to which, on analysis, brought not very precise information.

When someone calls you to inquire into any breach of law, or you yourself suspect someone of a criminal act,

1. How do you gather information?

1. Are there any special rules for the examination of suspects or witnesses’ testimonies by the police?

1. Do you test testimonies? How?

1. Do you confront witnesses – the suspect and the witness face to face?

1. Technically, what is the course to be followed by the police when witnesses make different, even quite contrary statements?

1. When several witnesses agree to charge someone, how do you proceed to be certain that they do not form a hostile group towards the individual they are accusing? What kind of verification do you make? How?

1. Is the suspected person informed of the witnesses’ accusation against him? Does he know all about the testimonies?

1. Do the police systematically interrogate the witnesses whose names are given to them by the suspects? When?

1. Has the testimony of identity to be corroborated by evidence of another nature? Which kind of evidence?

1. When is the verification of testimonies – necessary? – unnecessary? How is it made?

1. If the suspect denies any criminal act and there are no witnesses, what do you call « reasonable grounds » on which base the police will be able to transit the file to the Superior Officer?

1. The suspect uses his « right to silence » and there is not any witness to the misdeed. What does the police officer do?

1. Do you search for any records of the suspect or/and of the witness(es)? If you do so and their records show the suspect and/or the witness(es) to be of « bad character » or to have been involved at some time with the police, what do you do? Is the interrogatory different then?

1. What appears to be – important – negligeable for the police in the interview of witnesses and suspects and the criticism of their testimonies?

1. Which additional powers, or help, would you wish for?

1. Do the police receive – psychological – logical training? – other type of Can you enlarge on this?

1. Is it the Chief Constable who checks the reports made by the police officer, and directly sends them to the D.P.P.? What is the procedure of transmission and checking?

1. Are all witnesses obliged to answer police questions? If not, why?

1. At the Magistrates’ Court, during the committal proceedings : The police must produce evidence against the accused. But they are not obliged to produce all the evidence at such proceedings. Why not? What is it grounded on? Which part do they have to produce?

1. If the police do not wish to call witnesses at the trial, can they still present their statements in evidence? Then, what about cross-examination?

1. What about witnesses who talk to the police but do not wish to be called at the trial? What happens to their statements?

The aim of this questionnaire, with its questions that complete one another, is to know how the police make their interview. On the one hand, do they receive instructions that they must apply, on the other, does experience lead them to put into shape, to adjust and to comply with a form of inquest?

Moreover, it is of course essential to know whether the police have any moral and intellectual training, that give them the feel for the truth.

This questionnaire was delivered to several policemen, in the London and the Manchester area. We have so far received many renewed promises, but only few answers – all the more precious for that!

Up to now, our inquiry has been answered by too few people for these answers to be positively representative of interviewing among the different police forces. We thus stand between what the law and rules provide which is reflected in books, what English law organisation says reality is, and in between, scattered judgements of lawyers, and a few policemen.

We also received an interesting reply from a London P.C. who gives reasons why he could not answer our entire questionnaire : « As regards the previous letter(s), when a personal letter is sent to an officer at a police station it is opened by the station clerks, the contents read and censored by them. Your letter(s) were regarded as confidential and not personal and therefore I never received them, and was not informed of the content. The policy at the police station is that if they think fit to supply information to members of the public/students, etc, they will do so by official and not private means… »

From those answers given first in Manchester, and then in Sheffield, it is clear that :

- the police verify all testimonies, by comparing them, by reinterviewing or by « occasional confrontation » of suspects and witnesses, for the use of identification, for example. In London, a police officer thought that there was no use confronting people, and he never did it.

- the skilfulness of the interviewing police officer is pragmatic and depends on his personal experience since he « does not get any specific training ». We may notice that in the answer from Manchester, the Judjes’ Rules are not even mentioned, as they might have been in answer to question 2. A second answer from Sheffield, broadly explains what they are, and states that evidence in breach of these rules may be excluded.

- The suspect is informed of all testimonies accusing him.

- There is a police internal check by « senior management ».

- If witnesses give different views there is a re-examination, and if there arises any doubt for the suspect, then no action follows.

We can but conclude that personal skilfulness and above all good-will are the best guarantee of impartial, minute and fair examination of testimonies.

Quetion 11 can be related to problems of the police obtaining the admission of someone they suspect, when they have no proof.

Question 16 was a very important point since it concerned police education. The November 1984 edition of the Observer Magazine 24 published an article showing what sort of training recruits have at Hendon, North London.

Since World War II and the 1981 Brixton riots, Lord Scarman proposed « an extension of the training period from the current ten to fifteen weeks, to six months and a probationary period to be spent in an inner city area with a sizeable black population »25, because racial prejudice was greatly increasing among junior officers, and it became known that they were unfair in their interrogations of coloured men.

No specific basic educational qualification is required, just general O’ Levels. In fact, they are given a few rudiments of psychology and sociology. « Recruits discuss such phenomena as self-awareness, interpersonal relationships, active listening and non-verbal exchanges. In a well-equipped language laboratory, recruits are acquainted with the accents – including those of ethnic minorities – they can expect to hear in a large cosmopolitan city. They are warned that the scrambled speech patterns of a spastic or of a deaf person are no indication of mental impairment. In short, they are discouraged from making snap judgements ».26

Role-playing and their incidents are video-taped by instructors who then « dissect their colleagues’ performance ».26b « In a simulated police station and courtroom,

24 Refer to annex for written answers.

25 Ibid, p.11.

26 Observer Magazine, p.11.

26b Ibid.p.11.

hesitant recruits civilian clothes stand in for magistrates, witnesses and defendants and afterwards appraise their students’ first efforts… » 26c

They are taught how group behaviour can be different from the behaviour of individuals.

Police recruits’ sport competitions are composed jointly of constables and civilians « to make the recruits feel how they are perceived ».26d

Maturity, open-mindedness, common sense are the sought goal.

In Notting Hill Gate Police Station, a police constable told us that the instruction of the new trainee was made by an experienced police constable who has a seniority of at least two and a half years. Both « work what’s going on in the street two days a month ».

According to Justice, the policemen are often inexperienced in the field of law. One of the consequences is that someone who is guilty can escape sanction if he has not been effectively cross-examined, or his case will be badly presented. This want of education would entail too slack or too strong an attitude, lacking criticism and perspective to be able to weigh facts equitably.

That they are involved in the conduct of prosecutions, also exposes them to the temptation of « bargaining » 27 with the suspect to « let him down lightly »28 or to « put in a good word with the magistrate »29, to grant him bail or to refrain from prosecuting him. The police would be too subjective and this would be reinforced by a system of judgement, the nature of which can cut both ways : in this contest between the two sides, with the judge acting as umpire in front of a jury that are to be brought over to the cause, the prosecution may feel like winning.

In the same vein, the two-fold responsibility of the police is often felt by the English people to be confusing, in the sense that a « vigorous »30 investigation cannot be coupled with a « cool, careful, objective assessment of the whole of the evidence and probabilities needed for a correct decision as to whether the prosecution should be started or continued. »31

But none of these points appear to us as being soundly or even reasonably thought out. In effect, if the police attitude is good, why would they not be able to lead both a « vigorous » and objective enquiry, thus hoping for a fair conviction in the light of the facts that are to be taken into consideration? So there seems to be something

26c Ibid.p.13.

26d Ibid.p.13.

27 Justice, The Prosecution Process in England and Wales, London, 1970, The Eastern Press Ltd of London and Reading, p.6.

28 Ibid., p.6.

29 Ibid., p.6.

30 Ibid., p.8.

31 Ibid., p.8.

of a contradiction with the police : they appear to have too great powers, but these powers are not well defined, and policemen are not well prepared for them.

The term « witness » covers on England the parties to the proceedings, since a witness is one who has « direct and personal » knowledge of things that have happened.

The very interesting case of Sparks v. R32, shows that a careful inquiry had to be made on appeal, to determine whether the conviction of this American army sergeant to two years on the grounds of admission of guilt to the police, whereas there were no witnesses and no other proof, could not be quashed.

The case relied upon the police evidence that he had committed the offence and that it was in his interest to sign a confession. « If you say I did it, I guess I did it. »33 Nobody had any proof of his assaulting the little girl, who herself did not testify in person, but through her mother who was the only person to whom she had spoken, telling her that the man was « a coloured man ».34 The accused was a white man.

The little girl had been left alone by her mother asleep in an unlocked car in the evening, with her mother or friends watching her from time to time. By 9.30 p.m., she had disappeared from the car, and was restored to her mother by 10.40 p.m.

The sergeant had been to one of his friends’ home between 10 p.m. and 11 p.m. in the company of the little girl.

In his statement to the police on the following morning, the sergeant could not remember clearly what he had done during the evening, for he was then fairly drunk, but there was no evidence at all that he had been involved in this assault. The police returned to the sergeant’s house in order to elicit a few more points about his whereabouts and asked him to go to the police headquarters where the police officers questioned him and put various statements to him. At a time the police told him : « You were at Bermuda Bowls and with a little girl – possibly she was relieving herself and you took her in your car and drove up Spice Hill Road, parked and indecently assaulted the child, could not get your car started, took the girl with you to the party ».35 The sergeant replied if it really happened so, « it would seem strange to take the girl to a place where twenty-five people would know him ».36 A few hours later, he signed a written statement containing admissions on the basis of which he was eventually charged with the offence of indecent assault.

Since he later declared that this statement had not been voluntary, and the evidence had been a complete « fabrication »37, the prosecution had to prove that it was voluntary evidence. The judge proceeded to a careful inquiry in the absence of the jury, on the « voir dire ».

32 Sparks v. R, (1964),1A11 E.R.,727.

33 Ibid., p.737.

34 Ibid., p.730.

35 Sparks V. R, (1964), 1 All E.R., 727.

36 Ibid., p.727.

37 Ibid., p.738.

There was a serious discrepancy between the inadequacies of his recollection, due to his excessive drinking, and his seemingly detailed memory of events with admission of guilt during the second interrogation. It was accepted that, the first time, the police had asked him questions at his own home, and the second time they absolutely wanted him to go to the police headquarters, without asking him anything, nor telling him the exact reasons why they had to do so. He did not know what had been done to the little girl; but he said it was rape and protested against being accused of that, whereupon he was told it was not so serious. Then he told the police he also had a little boy of four who would be able to recognise someone who would have harmed him, and he asked for a confrontation with the little girl. It was refused him : « it would be too hard on her »38.

The judge admitted the evidence.

During the cross-examination, one of the police officers acknowledged that the police’ purpose had been « to get him to admit the offence ».39

The judge ruled that the alleged confession should be legally admitted since the sergeant had signed the caution which showed that the procedure had been properly done. The accused admitted that he had been properly cautioned and « such inducement as he thought had been held out, did not continue to operate at the time of the making of the statement ».40

But the police had tempted him by claiming that they could prove he was the culprit, that if he confessed the act he would be tried by a court martial, not by a civil one in the eyes of everyone, and that this way he would spare his friends and chiefly his wife, bad publicity, for if there was to be an inquiry she would be questioned and obliged to stay on Bermuda island where all this happened.

Their Lordships of the Court of Appeal ruled that « the caution marked the moment when the persuasions, the promises and the inducements became effective »41 and in consequence they quashed the conviction.

For judgement to be quashed, two elements must be brought together : the question of the voluntariness of the statement, and its having been obtained wrongfully. We can see by this case that police evidence is also examined. Therefore, there is not on behalf of the crown an unfettered delegation of powers in the criminal field, as for example in risk modifying the spirit of enquiry.

In England, principles have been pushed very far : they seem to conciliate two rules of public policy : on the one hand, any guilty person must be punished, on the other, the individual’s personality must be respected. Hence the confession obtained in breach of the Judges’ Rules will be admissible in court provided the

38 Ibid., p.737.

39 Ibid., p.743.

40 Sparks V. R, (1964), 1 All E.R., 740

41 Ibid., p.740

voluntary character of it be preserved. If it can be proved that the confession relies on an « inducement » or a « fear » or a « hope », it will not be accepted.

In fact, in as much as an incentive to good behaviour from the police, this rejection depends on a reasonable attitude : what credibility can be attached to induced confession?

Incriminating facts, discovered as a consequence of improperly, or even illegally induced confessions however are admissible, for their existence does not rely on the confession being true or false. But they cannot be corroborated by the confession. In practice, however, the part of the statement referring to the prosecuting evidence is taken into account.

c. Availability of prosecution evidence to the defence

Indeed it is of extreme importance for the defence to obtain prosecution evidence : in reality there will sometimes be ambiguities in the answers given, and all information must be available to shed light upon the alleged offence.

The aim of it is that the accused might defend himself, but it should be chiefly to anticipate slander.

The duty of the police is to ensure peace within the community, and they can solve conflicts if they are well aware that it is morally inconceivable to incriminate a man without telling him the exact reasons for charging him, running the risk of casting a slur on someone’s honour, profession and indeed his life. « Cursed be he who hits his neighbour in secret » 42, which is a great crime against peace.

It is not and it should not be the duty of the police to keep any information otherwise incomplete information may well be prejudiced. To retain information is unfair and it is to be considered as equivalent to the suppression of evidence, or even the fabrication of evidence.

Unfortunately this appears often to be the practice with English police. This statement, though not always possible to prove, appears to be the settled conviction of many defence lawyers.

One must realise that the organisation of justice in England in Magistrates Courts, does not take measures for pre-trial proceedings : the accused knows what he is reproached for and he is aware of witnesses’ statements only if he is judged on indictment or if he can choose to be tried either by magistrates or a jury.

The police have nearly always statements of evidence however, but no statutory rule requires them to serve these statements in advance of the hearing, even in the case of a person who pleads « not guilty ».

42 Torah, Deut. 24.

The consequence is that the prosecution evidence of witnesses may take the defence totally by surprise, and counsel has to ask for an opportunity to take his client’s instructions about these testimonies or ask for an adjournment to think over the testimony and produce rebutting evidence, but in extreme cases only.

At a later stage in committal proceedings, the aim of which is to decide whether or not there is sufficient evidence to put an accused on trial by jury, the prosecution will have to produce evidence against the accused, through a copy of the witnesses’ statements. In fact the prosecution is not obliged to produce all its evidence at such proceedings. It just has to show what is necessary to prove that there is a case to answer. There can be no reason why the defence should not know all about police prosecuting witnesses’ statements, for it would enable them to prepare their defence properly.

Fortunately, the barristers and solicitors’ deontology provides the following duty : « If a prosecuting counsel or solicitor knows of a reliable witness who can speak of material facts which lead to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. The English balance of fairness clearly demands such a rule ».43

d. Problem of statements tendered in evidence without witnesses being called.

The prosecution is under no legal obligation to call witnesses favourable to the defence. They could, if they wanted, call all the witnesses, favourable or unfavourable, whose testimony is essential to the narrative of the case.

Since the prosecution can call whichever witnesses it wants, there are some whom it does not wish to call to give evidence in court. But it can take statements from the witnesses and have them tendered in court when they are relevant to the case.

As was answered in our questionnaire (question 20), the acceptance of these statements is subject to the defence. But this latter generally has knowledge of them before the proceedings.

Let us consider Lord Goddard’s comments : It is said that it was the duty of the prosecution to have supplied the defence with the statements. In the opinion of the Court there is no such duty, nor has there ever been…the duty of the prosecution know can, if he is called, give material evidence ».44 In the questionnaire, the answer to question 21 was that the defence « would be told of the identity » of the prosecution.

Subsequent abuses have already occurred several times, according to Justice who received many complaints, and does not give any precision, but refers to a case where a list of thirty eight witnesses « available » according to the Court of Appeal

43 Lord Denning in Dallison V. Caffery (1964), 2 A11 E.R. p.610 and p.618.

44 R. V. Bryant and Dickson, 31 Cr. App., p.151.

decision) was disclosed too late, after conviction, because the police had judged that there was nothing « material » in them which would have assisted the defence.

Moreover, the police refused to give these thirty-eight witnesses’ statements to the defence for the same reason, although an appeal was perhaps to take place.

The defence had to find them out by themselves and then, these witnesses did not want to make any further statement, for they had already made them to the police.

Another danger with witnesses’ names given too late, is that their memories are not so faithful and it is not so easy then to find other reliable corroboration.

One must not forget that English justice tries, in as must as petty offences, judged summarily, are concerned, to judge cases very quickly, that is to say, within a few days.

Police officers record all the actions of the persons they arrest on a « contemporaneous note interview ».45

Even if the police genuinely think that there is nothing « material » in some evidence, they may be mistaken.

« The police are likely to be selective in dealing with evidence. They may be primarily concerned with meeting an alibi… the human temptation of the police to test the importance of information against their belief or hunch or theory, is surely undeniable… In the Hanratty case, the police were satisfied that Hanratty committed the crime and accordingly tended to view all information coming to their attention in the light of that premise. »46

Police duty to have the suspect know all about the prosecution’s accusations is a moral duty.

Judges’ Rules provide that as soon as a person has been charged, he « should »47 be given the written particulars of the offence, stated in simple terms so that he might understand every one of them.

And « if… the police decide, before he has appeared before a court, to modify the charge or to prefer further charges, it is « desirable » that the person concerned « should » be formally charged with the further offence and given a written copy of the charge as soon as possible to do so. »48

As we have already seen, Judges’ Rules have more the strength of moral recommendations than force of law; terms remain incitative out of respect for police independence.

45 A police officer’s information.

46 Justice’s Committee on the Law of Evidence, 1966, p.3.

47 Judges’ Rules VI b.

48 Judges’ Rules VI b.

But it is important that moral law should be emphasised.

Indeed, it is not backed up by force, it presents itself as reminder of how the police have to behave. Unfortunately, the expression of it may appear a little weak.

To communicate to the accused charges that weigh him down, belongs to fair right grounded on regard for one’s fellow.

This rule has strength only within a society that acknowledges and adheres, with all its heart, to moral law.

Therefore, if police officers do their work rather honestly, but without going to the core of the matter, or if they give grounds for complaint, it may be, because the rules are a little too uncertain, lacking legal obligation. And if in England, lawyers agree to admit abuses, it is perhaps because moral values are losing strength here too.

WHO MAY TESTIFY : GENERAL CONDITIONS

1. Persons

Nowadays, most people can be witnesses. This decision which is confirmed in Parliamentary Acts, can be traced back to less than one century in the case of Criminal law, and less than one century and a half in the case of Civil law.

Only children under seven, or people whose intellect is deficient, are by force recognised as incompetent under the modern law.

Moreover, in no criminal trial will the accused be competent for the prosecution (except in cases of public nuisance), no more than the spouse of the accused.

If almost anybody can be a witness, it is because the act of bringing one’s own testimony is in our day chiefly considered as a duty, whereas in former times it was a privilege.

Excluded from this privilege were all those who did not accept the authority of the Gospel, principally the Jews and the heathens, then those who had been convicted of infamous behaviour as on a crime of treason or perjury, lastly the parties to the case in litigation or their spouses, as well as any person having interest in a trial.

From the eighteenth century, the rationalism of the philosophers has contributed to a spirit of tolerance towards religious beliefs.

Locke and Hume’s logical and reasonable doctrines acknowledged in man, in his natural state, respect of the laws morals, and they judged absurd a religious « enthusiasm » as an element of affrontment.

These capacities of « competence » and « compellability » are not determined solely by the information that the witnesses may carry on facts, however material they may be, since English law, according to its rules, does not accept the exploitation of any useful information to have the proof of a fact come out.

If any question is raised concerning the competency of a witness, that is to say the reliability of his testimony, the judge (or the magistrate) must interview him during a preliminary hearing called the « voir dire » (« voire » being the Norman French for « vrai »), to decide whether he is reliable to be sworn in or not. This enquiry-trial within a trial will take place in the absence of the jury.

In effect the common law, which still has authority, lays down that no testimony can be legally admissible if it is not made under oath.

Here is the reason why children younger than seven and people having a defect of understanding are incompetent, for a priori they are not capable of appraising the nature and consequences of an oath.

The civil law totally excludes their evidence.

The criminal law, more nuanced, states that the admissibility of their giving evidence « depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded by the Court »1, which the 1933 Children and Young Persons Act affirmed, as it states that so long as children « are possessed of a sufficient intelligence to justify the reception of evidence and to understand the duty of speaking the truth »2 they can give unsworn testimony.

It is still the judge who will decide whether a child is endowed with this « sufficient intelligence ».

In the nineteenth century, the modern base of the law was given by statute.

The law now considers that even the want of religious creed does not prevent a man from being bound by his troth or his word.

In the nineteenth century, convicts who had finished their penalty for infamous behaviour, were allowed to give evidence, except if they had been guilty of perjury.

At present, the fact that a witness has been convicted solely affects the credibility of his testimony.

As for the parties to the case or their spouses, or any person having interest in a trial, they were ranked in the same category because of the interest each of them might have in the conclusion of the procedure.

During the nineteenth century, all these different categories acquired their right to bring forth their testimonies.

The interest that an individual may have in a trial now affects only the weight of his evidence; the accused party can give evidence for its own defence at any stage of the procedure, and the spouse of the accused is a admitted as witness for the defence – for the prosecution even, in matters of marital violence, sexual offence or theft of the spouse’s possessions, and in cases of public nuisance.

According to which rules are testimonies admissible?

2. Rules

The English law provides « competent » individuals when it gives them the possibility of testifying, and « compellable » by the obligation it imposes on them to utter in this testimony.

1 The King v. Brasier, Leache (4th ed.), 199 (1779), p.1074.

2 Children and Young Persons Act (1933), s.38.

A French justice made a very interesting remark to us from his own experience : it is not so difficult to get at the truth with grown-ups.

Because they generally give themselves away during the course of the examination. But children very often tell tales, and are able to tell them in a very coherent way, without contradicting themselves.

We may remark that an accused is allowed to make an unsworn statement; it does not exactly prove facts, since what he says cannot be questioned by the opposing party, but it may cast light on them for the jury.

Unsworn testimony will have the value of evidence during the trial, but it will have to be corroborated. « The accused shall not be liable to be convicted the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him ».3

Beyond seven years old, children who understand the nature of an oath are competent to give sworn testimony in court. In R v. Hayes, 19774, the Court of Appeal held that the test is whether the child has « sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth » 5which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

Similarly, a person whose degree of intellect does not enable him to give a rational account of the matter in question, whatsoever the cause may be : mental illness, drug addiction, etc, will be classified as incompetent because he « cannot understand the implications of the oath.

If it is only a temporary disability (eg, witness is ill), the case may be adjourned to allow the testimony, on the judge’s decision.

If his testimony, then he may be sworn in and it is for the jury to decide the degree of credit that is to be given to his testimony.

There is a very famous case of an inmate of an asylum who had some delusions that the spirits talked to him; since they did not make him incapable of dealing rationally with the matter about which he was asked, he was held as competent.

If his incompetence, however, had been discovered after giving evidence, his testimony would have been rejected.

3 Children and Young Person Act (1933).

4 R. v. Hayes, (1977) 2 ALL E.R. 288.

5 Ibid, p.290.

Therefore, and born of the common law, the criterion of competence is the sense of responsibility to tell the truth, backed by the oath.

One of the reasons for the incompetence, generally speaking, as regards the accused’s spouse, is that « marital peace and the confidential nature of the marriage relationship will be unduly disturbed if spouses are allowed to testify against each other ».6

In our opinion, this is an extremely wise decision for if we cast a glance on divorce cases which bear with them the burden of all these false testimonies, in some other countries, it is quite edifying. Therefore, we think it interesting to deepen this particular point.

The spouse can neither give evidence of facts that happened before or during the marriage, nor of facts that happened after a judicial separation.

According to common law, the spouse can testify against his alter ego in cases of : treason, forced marriage, unnatural offence (eg, the husband organising the rape of this wife), or attempted murder by the husband who would put poison in his wife’s milk.

Certainly the spouse cannot testify in cases of a husband living off the immoral earings of his wife, husband’s defamation towards his wife, or when a husband writes his wife a letter in which he threatens to kill her.

This can perhaps be read so :

It must therefore be, by effect of common law, that the wife should wait till tasting the poisoned milk before being able to complain of her husband. He can also make her work in an immoral manner, live off it, speak ill of her, so long as he had not forced her to marry him and does not assault her, chiefly in a bizarre way, or does not prove to her he is a traitor.

Through statutory exceptions, the spouse’s competence for the prosecution or the defence, without the consent of the accused, extends to demeanours concerning the family: in cases of child murder, or if the spouse deserts the house or does not care at all about his: her family. It acts also in cases of indecency to wards the children, and bigamy. All these add themselves to sexual offences in general.

The spouse is also competent to defend a co-accused if the accused agrees (in cases of theft, he/she need not ask for his/her consent).

According to the Criminal Evidence Act of 1898, the accused is competent but not compellable, because he may not be willing to disclose any information that might incriminate someone else or be added to his record.

6 Cross, Sir R., Cross on Evidence, London, butterworths, 1979, 5th ed., p.183.

Prosecution is not allowed to comment on it, and judicial comment buy the judge is subject to appellate control.

In civil trials however, the accused may be compelled to testify by the adverse party, from the Evidence Act 1851. His/her spouse became competent and compellable in any civil proceedings three years later, as well as the spouse of the prosecuting witness.

Where the accused’s spouse is competent for the prosecution, he/she is never compellable (except under the case of public nuisance 7and under common law exclusions, in some cases of unnatural offences by a husband towards his wife, an « unnatural offence »8 covering any « injury to the health, liberty or person »9 of the victim.

The accused is competent but not compellable for anyone tried jointly with him, but competent and compellable when he has pleaded guilty or is tried separately or has been acquitted.

Let us not forget that when a witness is competent but not compellable, he cannot be called as a witness against his will. When he is competent and compellable, he must attend the trial voluntarily, or he may be served with a « subpoena »10 (an order of attendance). Failure to answer his duty may lead to imprisonment.

England gives most importance to oral testimonies. It also admits written evidence, and there are rules too which regulate the giving of written or documentary evidence. If possible, the original document must be produced and witnesses may be called to authenticate it.

Legal conditions for the acceptance of written statements are the following ones : a written statement shall be admissible as evidence to the like extent as oral evidence…(if)

a) The statement purports to be signed by the person who made it.

b) The statement contains a declaration by that person that it is true « to the best of his knowledge and belief ».11

Written evidence is admissible as direct evidence only if the witness is dead or too ill to attend the trial, or kept out of the way be the accused.

3. Number of Witnesses

The prosecution solicitors, or the police, bring whichever witnesses they need to prove the case. So does the defence.

7 Evidence Act 1898 S.6.

8 Criminal Evidence Act 1898, S.4(2). exception.

9 Cross, Sir R., On Evidence, p.177.

10 A P.C., Notting Hill Gate Police Station.

11 Criminal Justice Act 1925 S.13(3), and 1967 S.2(7).

The general rule, in civil and criminal cases, requires the court to be able to act on the testimony of one witness, without it needing corroboration.

This does not mean that the law should act so.

Of course, the common law requires that the testimony of a single witness should be relevant to the issue in the judge’s judgement, and credible in the jury’s judgement.

Necessity that there be several witnesses is exceptional; thus it is required in the 1795 Treason Act, for plot against the life or liberty of the Monarch, and in the Representation of the People Act 1949 for impersonation at elections.

In this respect, the oaths of two or more credible witnesses are required.

Of the exceptions to the general rule by the common law, also exist the cases of perjury, confirmed by statute (1911), and of wills relating to the real estate in the Wills Acts of 1837.

Sometimes, « the circumstances may be such that there is no check on the witness and no power to obtain any further evidence on the subject. Under these circumstances juries may, and often do, acquit. They may very reasonably say we do not attach such credit to the oath of a single person of whom we know nothing, as to be willing to destroy another person on the strength of it ».12

Therefore, judges have developed rules of practice to warn the juries of the danger of convicting on uncorroborated evidence.

« Subject to this requirement of a warning, both judge alone and jury are entitled to act on uncorroborated evidence »13 for testimony should be weighed, not counted.

English authorities have discussed the resting of the decision on the existence of a single witness’s testimony, or on the contrary, of several witnesses, and brought to light that the insurance of a reliable proof depends on the level of morality, of the « standard of proof »14 that prevails among the population. Thus under a system where all questions of law and fact – as it is in Magistrates Courts nowadays -« are entrusted to a single judge and the standard of truth very low among the population, such a rule may be dangerous. »15

On the other hand, the testimony of several men opposing him.

12 Cross, Sir R., quoting Sir James Stephen in Cross on Evidence,p.196.

13 Cross, Sir r., Cross on Evidence, p.196.

14 Best, William M., Principles of the Law of Evidence,London, Sidney L. Phipson, 1922, Book III, Part II, p.517.

15 Best, W; Ibid, p.517.

In some cases this rule of practice seems even to have the force of a rule of law. Therefore, if the accomplice of the accused in a criminal trial gives prosecuting evidence against the accused and the judge fails to warn the jury that it may be dangerous to convict without any corroboration, the conviction will generally be quashed even if, in fact, there be ample corroboration of the evidence of the accomplice.

WHO MAY TESTIFY : GENERAL CONDITIONS 19

By G. DESAINT 1985

C I V I L

TESTIMONIES

C R I M I N A L

!ded guil-!

————!———!———!——————-!———-!—————!

TRIALS

!COMPEL

WITNESSES !COMPETENT!LABLE

COMMENT !COMPETENT

COMPELLABLE !

————!———!———!——————-!———-!—————!

THE ACCUSED !1851 Act !When plea! !1898 Act !When pleaded !

-Defence

!guilty or has !

for himself ! !ty or ac-!

!been acquited !

for co- !

!quitted or

!1898 Act !or is tried se-!

accused

! Yes !tried se-!

!parately

————!———!———!——————-!———-!– ————!

-Projection !1851 Act !

!Unsworn testimony !1877 Act !public !

ag. co-

!cannot be evidence !public

!nuisance

accused

!of facts stated

!nuissance ! !

————!

!——————-!

ag. adresse ! !

!Unsworn testimony !

!1877 Act

party !1851 Act !

!cannot be evidence !

!public !

!of facts stated

!1877 Act !nuissance

————!———!———!——————-!———-!—————!

THE SPOUSE !

!Cannot testify con-!

OF ACCUSED_ !1853 Act !1853 Act !cerning events ha- !

_-Defence_ !

!ving occured before!

Yes

for accused ! !

!or during marriage,!————————–!

!or after judicial !with accu-!1877 Act public!

!separation-same dis!sed’s con-!nuissance

!position for widows!sent !

————!

!——————-!————————–!

for co- !yes

!On accuse-!1877 Act-public!

accused

!d’s appli-!nuissance

!cation (ex!

!cept for !

!theft,1968A) !

————!———!———!——————-!———-!—————!

– Projection! !

!Cannot testify con-!Marriage !

ag. accused !

!cerning events ha- !violence. !

!ving occurred befo-!Theft. Tre! !

!re or during marria!son. Theft!

!ge, or after judi- !in referen!

!cial separation-sa !ce rospou-!

!me disposition for !se proper-!

!widows.

!ty. Family!

!demeanours!

!sexual of-!1877 Act public!

!fenects, !nuissance

!!!except hub!!!!!band inde-!!!!!cent conduct!!!!!with othermen!ag co- !!!!!!1877 Act public!accused!!!!!nuissance!ag adverse ! !!!!!1877 Act public!party !!!!!nuissance!————!———!———!——————-!———-!—————!CHILDREN OF ! yes! yes !!! yes ! yes !ACCUSED !!!!!!- Defence ! !!!!!!————!———!———!——————-!———-!—————!- Projection! yes! yes !!! yes ! yes !————!———!———!——————-!———-!—————!PARENTS OF !!!!!!ACCUSED !!!!!!- Defence! yes ! yes !!! yes ! yes !- Projection! yes! yes !!! yes ! yes !————!———!———!——————-!———-!—————!THE SPOUSE !1853 Act ! 1853 Act!Cannot give eviden-!Cases of !!OF PARTIES !!!ce concerning even !marrital !!- Defence!!!ts occuring before !offence. !!!!and during marriage!family!!!(including widows.)!demeanour ! !————!———!———!——————-!———-!—————!- Projection!1853 Act ! 1853 Act! !!!!————!———!———!——————-!———-!—————!CHLLDREN +7 !!!!Must appre! !- Defence!!!!ciate solem !!!!!!nity and !!!!!!responsabi! !!!!!!ty to tell!!!!!!the trath.!

$*$

WHO MAY TESTIFY : GENERAL CONDITIONS 19

By G. DESAINT 1985

C I V I L

TESTIMONIES

C R I M I N A L

————!———!———!——————-!———-!—————!

TRIALS

!COMPEL

WITNESSES !COMPETENT!LABLE

COMMENT !COMPETENT

COMPELLABLE !

————!———!———!——————-!———-!—————!

CHILDREN -7 !

!Unsworn evidence !1933 Act ! !

-Defence

!has to be corrobo- !if suffi- !

!rated !cient intel

!ligence

————!———!———!——————-!———-!—————!

! ! ! !except hub! !

! ! ! !band inde-! !

! ! ! !cent conduct

! ! ! !with othermen

ag co- !

! ! ! ! !1877 Act public!

accused

! ! ! ! !nuissance

ag adverse ! ! ! ! !1877 Act public!

party ! ! ! ! !nuissance

————!———!———!——————-!———-!—————!

CHILDREN OF ! yes ! yes ! ! yes ! yes !

ACCUSED ! ! ! ! ! !

– Defence ! ! ! ! ! !

————!———!———!——————-!———-!—————!

– Projection! yes ! yes ! ! yes ! yes !

————!———!———!——————-!———-!—————!

PARENTS OF ! ! ! ! ! !

ACCUSED ! ! ! ! ! !

– Defence ! yes ! yes ! ! yes ! yes !

– Projection! yes ! yes ! ! yes ! yes !

————!———!———!——————-!———-!—————!

THE SPOUSE !1853 Act ! 1853 Act!Cannot give eviden-!Cases of !

OF PARTIES ! ! !ce concerning even !marrital !

– Defence ! ! !ts occuring before !offence. !

! ! !and during marriage!family

! ! !(including widows.)!demeanour ! !

————!———!———!——————-!———-!—————!

– Projection!1853 Act ! 1853 Act! ! ! !

————!———!———!——————-!———-!—————!

CHLLDREN +7 ! ! ! !Must appre! !

– Defence ! ! ! !ciate solem !

! ! ! !nity and !

! ! ! !responsabi! !

! ! ! !ty to tell!

! ! ! !the trath.!

-PROJECTION !

!Unsworn evidence !1933 Act ! !

!has to be corrobo- !if suffi- !

!rated. !cient intel

!ligence

————!———!———!——————-!———-!—————!

PEOPLE OF !

! !

!Must be only partia!Must under! !

WEAK INTELL.!

! !

!lly or temporarily !stand the !

– Defence

!disabled

!nature of !

!an oath. !

————!———!———!——————-!———-!—————!

– Projection! !

!Must be only par- !Must under! !

!tially or tempora- !stand the !

!rily disabled !nature of !

!an oath

————!———!———!——————-!———-!—————!

EXAMINATION OF TESTIMONIES AND THE CRITICISM : CROSS-EXAMINATION

A. Witnesses in general

Rules that were sorted out and perfected throughout the centuries to sound, probe and evaluate testimonies and ensure their reliability, have led England carefully to consider not solely the contents, but also the nature of the depositions.

The spirit of verification will rest on two main criteria :

– all that is irrelevant is excluded;

– all that is relevant is not necessarily admissible.

The relationship which exists between the alleged offence and the elements that are connected with it, sometimes convey probability that cannot be conclusive, or else would entail a multiplicity of trials within the trial, resulting in unending procedures, and no settlement of conflicts.

Common sense demands that someone who is caught in possession of recently stolen goods, with no satisfying explanation of the fact, be guilty.

If Mrs Martin says Mrs Jones told her the accused found these objects beautiful and would very much like to have them in his home, if the accused has already been convicted of theft, and if several witnesses have seen him dressed in a large coat, near the victim’s house, the probability that he is guilty is extremely high, and the fact he is not able to give any explanation of his being in possession of them, tends to corroborate this probability.

One is then only directed from this convergence of facts to ask the accused to confess his offence.

English law prides itself on being reasonable : a witness’ opinion is not to be taken for granted, the amount of witnesses is in no sense proof of the truth of the facts, and apart from exceptions, what evidence they hold from other persons cannot be accepted because there is no real thorough examination possible.

Obtention of confessions is not what English justice seeks : one can have someone confess anything in certain circumstances. It is not for the accused to exculpate himself either.

In both classes of testimonies however – testimonies by witnesses in general, that is to say on whichever side they may be, and testimonies by the accused as witness – there may be fabrication.

« The presumption… is, that no man would declare anything against himself, unless it were true, but that every man, if he was in difficulty, or in the view to any difficulty, would make declarations for himself. »1

Hence, witnesses are examined as to the credit that can be accorded to them, and to the objective probability of what they say, because obviously they may be mistaken.

The rules concerning more specifically the examination of the accused will be dealt with apart, for if his credit was as directly impugned as that of other witnesses, it would be too insuperable a task to defend himself, since what might come to light could prejudice him too much in the eyes of the jury : guilt must not be inferred from past misdeeds.

If we consider these respective interviews, we withhold that witness’ declarations are analysed on a « subjective » level, as far as the character is concerned, and on an « objective » level, which requires the testing of their observation faculties, and their mental capacities of speaking the truth.

In the first class of evidence, what they say « goes to credit », and in the second class, it « goes to the issue ».

So that witnesses should be encouraged to testify in court, different privileges are conceded to them.

Some relevant evidence will therefore be excluded on grounds of public policy and personal interest of the citizen.

It can also be set aside on account of collective interest.

Except in the interests of the State, this does not mean that no examination is ever to take place in this field, and courts will set themselves a moral duty to use their discretion for the attainment of truth and justice.

1. Privileges

So some privileges from disclosure are granted to the witnesses, for the good run of society.

These privileges can be either waived by the interested themselves, or dismissed for the better administration of prevailing justice.

Other privileges can be respected on the grounds of the :

1 Eyre, C.J. in R.v. Hardy (1794) in State Tr. 199, at cols. 1093.4; quoted by Cross (Sir Rupert) in Cross on Evidence,p.2.

a) interests of the State, for example the defence of the country.

These privileges are absolute : no solicitor can have the plans of a submarine disclosed in proceedings instituted against negligence.

Governmental reports are prevented from being disclosed when diplomatic relationships are implicated.

Communications between servants of the Crown are privileged because they might sometimes put the nation in jeopardy and entail wars.

The old concept of safety of the state has become that of « injurious to the public interest », and the present legal currents would like to be in a position to examine the cases objectively, so as to that the interests of justice should be safeguarded. This is still decided by a minister.

Men are such that many of them will speak the truth in unusual circumstances only.

b) Privilege from self-incrimination

Remembering the ferocious practice of the Star Chamber before which any man was forced to swear on God for anything that he might tell, and was then incriminated by it, English people in the seventeenth century were granted the right to refuse to answer any question tending to incriminate them or render them liable to a penalty, a privilege extended to their spouses (but not to any other member of the family).

The court knew that in order to be a truthful witness, a man must speak freely without the risk of going to jail because he has perjured himself.

But a witness must not refuse to be called on the ground that what he has to say during his testimony will incriminate him.

He cannot decide alone the incriminating consequences of his revelations : it is up to the court to say whether it is to be « regarded as so far beyond the bounds of reason as to be no more than a fanciful possibility ».2

This is to be examined from the nature of the evidence he wants to withhold, and of course the whole context of the case.

Interviews witnesses have with lawyers on legal matters are also privileged.

c) Legal professional privilege

The effect of this privilege means that most of the time, there cannot be any cross-examination on legal professional-type communications : the witness, in cases where

2 Westing-House Electric Corporation Urahium Contract Litigation NDL Docket (1977), 3 All E.R., p.726.

he asked judicial advice on a litigation, is not obliged to divulge the conversations he had with his advisers; and lawyers, even if they are willing to, cannot reveal them without the consent of their client.

Particulars and matters concerning lawyers’ clients must be cleared, and choice of facts and arguments made by the lawyers who will present the case : if the witness concocts a story, with the help of his solicitor who chooses to see only the client’s point of view, the contents of any oral or written communication between them cannot be protected by this privilege and if the barrister « becomes aware … that the client has committed perjury during the course of the proceedings, he is under no duty to inform the court but he is under a duty to decline to take any further part in the case ».3

d) Loss of legal privilege in public interest or to establish innocence

In Butler v. Board of Trade4, the Director of artists and press companies was charged with fraud by the Board of Trade who wanted to produce in evidence a copy of a letter written by the Director’s solicitor to him (the Director) before the liquidation of the companies.

The copy of the letter was found among papers collected by the Official Receiver in Companies Liquidation, consequent to a winding-up order of the two companies.

Since there was a criminal case of fraud, could the copy be tendered in evidence, taking into account that the letter was written on the sole initiative of the solicitor, and not as the firms’ solicitor?

The Director appealed to equity to prevent the contents of the letter being prejudicially put in evidence.

It was decided that though not solicited, a warning stating that if the client did not take care he might incur serious consequences, which she (the solicitor) described »5 was innocent on the part of the solicitor, « advice as to the nature and extent of those rights and the limits of one’s own lawful powers »6, when the alleged fraudulent purpose consists of « deflating another’s rights by unlawful means »7, this advice « may well be regarded when considered as a prima facie basis as at least in preparation for that unlawful purpose »8.

The copy being no longer in the hands of the solicitor but of the defendants, confidence substitutes itself to privilege but « the interest and duty of the defendants as a Department of the State to prosecute offenders under the Companies Act, 1948 thus

3 Barristers, Professional Rights and Duties, paras 1195, p.659.

4 Butler v. Board of Trade (1970), 3 All E.R., p.593.

5 Ibid., p.596.

6 Butler v. Board of Trade (1970), 3 All E.R., p.598.

7 Ibid., p.597.

8 Ibid., p.598.

prevails over the offender’s limited propriety right in equity to restrain a breach of confidence. »9

We like quoting R.V. Barton10 : it is, in some way, the counter past of R.V. Butler, for in the realm of justice no privilege attaches where an offender has to be punished, and an innocent to establish his innocence.

Moreover, this case is very demonstrative and enlightening on several points :

– English law is living law; it has not been stifled by precedents and rules on which to rely;

– The judge is not acting only as an umpire who just states and recalls the rules of the game, sanctioning if necessary.

This extreme importance is precisely due to the fact since he does not involve himself personally in the trial, he gains detachment and is allowed discretion in some fields that enable him to ensure that the trial will bring justice.

Barton, a legal executive in a firm of solicitors, was charged on several counts, principally misappropriation of funds in the course of his duties.

Right at the outset of the trial, counsel for the defence served a subpoena on a solicitor, a witness for the prosecution, to attend the trial in order to give evidence and produce documents that originated in his office. These documents involved the accused, but in an irreproachable way, acting as solicitor to executors or administrator of estates.

The prosecution was therefore not willing to tender them in evidence; the sole relevancy of these documents sprang out of their clearing the defendant of the charges on which he pleaded not guilty : they were not the subject of any charge against the accused, they just concerned the estates but would help to further a point of the defence.

Judge Caulfield quoted Sir R. Cross11 and quoted the rule : « …communications passing between these persons (a client and his legal advisor) and third parties may not be given in evidence without the consent of the client if they were made either (1) with reference to litigation that was actually taking place or was in the contemplation of the client, or (2) if they were made to enable the client to obtain, or the advisor to give, legal advice. »

Here is what Caulfield, judge at the Lincoln Crown Court, declared in 1972 (he had not had knowledge of the documents on which he was to give a rule, prior to the trial, as the law provides for in civil rulings) :

9 Ibid., p.600.

10 R. v. Barton (1972), 2 All E.R., 1192.

11 R. v. Barton (1972), p.1193.

« I am not going to decide this application on the basis that either one or the other of those two principles is not satisfied in the particular application. I think the correct principle is this, and I think that it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me; I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgement no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which if disclosed to the jury would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. »

We have here no example of discretionary justice, but of fair justice that » as much as it has been able to elaborate rules and let itself be bound by them in order to obtain the « best evidence », will also be able, still in the name of justice, to free itself from these rules when reality is the stronger force.

e) Loss of privilege when a third party happens to be in possession of privileged documents

If the contesting third party happens to have knowledge of a confidential document, so much the worse for the accused, for the opposing party will be entitled to use it, and cross-examine upon it. There are two possibilities for the adverse party to come to use the secret document : either he got it by chance or illegally.

Public policy provides for another privilege :

f) Marital Privilege

« The promotion of marital harmony »12 requires that no lawyer nor mediator (doctor, clergyman or marriage guidance counsellor) should disclose any information given to him by spouses. There must always exist « a view to reconciliation ».13

Neither husband nor wife, when witnesses, can be forced to tell any fact that occurred during their marriage :

« No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during marriage. »14

This privilege, pertaining only to the Criminal law, is personally attached to the spouse to whom the information has been given. This means that either one of the spouses can decide to abandon his privilege and recount the partner’s statement, even if this latter objects to it.

12 Cross, Sir R., Cross on Evidence

13 Lord Denning in Mole v. Mole (1950), 2 All E.R. 329.

14 Criminal Evidence Act (1898), Sl (d.) this privilege has been abolished in civil cases.

Obviously, this is a privilege that cuts both ways, for as much as it can protect a spouse, and help him/her, it can lose him/her the case, either where the disclosed contents are adverse to his interest, or if the communications kept secret, would have been helpful to the spouse.

This danger however has been limited, in that the accused’s spouse can only be called as a witness on application of the accused.

A very interesting debate took place in 1962 at the House of Lords between dissenting Lords on the question of admissibility of an incriminating letter written by the appellant to his wife, and given in evidence by a third party against the accused15 :

A ship-mate leaving Menai Bridge for Liverpool committed murder and part of the prosecution’s evidence was the letter he wrote to his wife, on board his ship, which amounted to a confession. He then entrusted a member of the crew with it, so that he could post it in the next port. Yet, this man, instead of posting it, handed it to the ship’s captain who gave it to the police. The shipmate was condemned.

Did not the sacred and overwhelming principle which long ago provided the common law with the rule that neither husband nor wife could testify against each other, logically and plainly prevent any marital communication to be tendered in evidence? By a majority, the House of Lords decided that it should be relied on the following historical facts : Party and accused spouse’s incompetence and privilege of revelation of marital confidences were not originally directly linked and so there is no such rule protecting this disclosure, although there were « expression of opinion »16 about it, but not as regards third parties. The law did not protect the communications as such, but only excluded the spouse from being a witness to prove them.

When spouses became entitled to testify against each other (chiefly in civil law, within some exceptions in criminal law), in the middle of the nineteenth century, did not the then privilege of non-disclosure of marital confidences survive this formerly long-standing principle of public policy?

Above all, the debate has borne on domestic confidence throughout legal history, and not on conjugal confidences. The guarding of confidence of private life had been one of the three grounds for the general rule of incompetence of parties’ spouses. The respect of this « public statement »17 led to the privilege recognised through the 1833 Evidence Amendment Act for civil cases, and the 1898 Criminal Evidence Act, « husband and wife shall not be compellable to disclose any communication made to him/her… during the marriage ». The privilege therefore appeals to no prohibition; it is a unilateral privilege concerning not the spouse who made the communication, but the one who received it, and who is testifying and liable to be cross-examined on this revelation. Nothing in these Acts includes a third party witness.

15 Rumping v. D.P.P. (1962), 3 All E.R., p.256.

16 Sir Rumping v.D.P.P. (1962), 3 All E.R.; Lord Reid, p.258.

17 Ibid. Lord Morris of Borth-Y-Gest, p.276.

When intercepted by a third party, by « successful », « accidental » or « professional eavesdropper »18 or otherwise, can the law accept these marital confidences as evidence against the accused? Is the accused’s fate to be determined by judicial discretion to exclude such prejudicial evidence? « What a person is overheard saying to his wife, or even saying to himself, is evidence. »19

At the core of the problem, how far can these two vital principles of public policy, to be taken as absolute, co-exist :

– protection of domestic peace through marital confidences;

– protection from wrongdoers?

These principles of public policy can in no way be competing principles : If a spouse does not want to reveal his/her partner’s confession, she/he is not compellable to do so. But the attainment of justice cannot supply the final withholding of evidence and non-compellability is no synonym for non-admissibility : Marital confidences can be proved either by the spouse or by a third party. When spouses are parties, if communications between them were inadmissible, as far as property, for example, is concerned in civil law, the exclusion of such fields of testimonies would be an « illogical nicety »20 and « to the individual who suffers injustice by the suppression of evidence, the injury falls on him with more grievous and enduring hardship than when it falls on the broader shoulders of the community ».21 It is of great importance for the community in as much that a murderer should be punished.

The spirit of justice must rise and regulate these two principles of public policy.

g) Loss of any privilege

If the witness knows nothing about his privilege or forgets it, though generally the judge reminds him of it, it is so much the worse for him : no shield will protect his answers from being used by the opposing party against him in the cross-examination.

In the fields of finance and property22, witnesses are compelled to answer questions without any privilege. Their answers however cannot be used against them in subsequent proceedings.

A witness must speak the whole truth, nothing but the truth and he must be comforted in this by the respect of his liberty and the confidence that truth is good : it cannot prejudice him into leading him to put forward facts or show documents that might either establish the existence of a penalty or an offence, or even put him into too great an embarrassment.

18 Sir Rumping v. D.P.P. (1962), 3 All E.R., p. 266.

19 Rumping v. D.P.P. (1962), 3 All E.R., p 271, Lord Morris of Borth-Y-Gest quosting R.V. Simons case (1834), 6 C. & P., p.541.

20 Ibid., Lord Morris of Borth-Y-Gest, p.279.

21 Ibid., p.279.

22 The Bankruptcy Act (1914), The Finance Act (1972), The Theft Act (1968).

2. Hearsay

English people reject certain manners of proving things, and also certain modes of proof, for they are not safe and the jury might lack discernment.

The chief rule is that one can give evidence only of what one has direct, personal knowledge, and that one expresses orally in court.

This excludes all hearsay, and all previous statement because, in the first case, the one whose declaration is repeated, did not make it under the strength of his oath; he or she is not there and cross-examination is therefore impossible.

To the one who does not state things directly, all recklessnesses are allowed They jury may, unwittingly, grand too much weight to such contents, for one then expresses feelings and impressions, which are most easily conveyed.

There may also be distortion, even fabrication, on the part of the witness.

Would the witness who used the words he had heard, in his testimony, have a sufficiently critical mind to be able to give them their due value, if he could not exactly remember them?

Would he not make undue references and distort the sense of the words? Would he not give them the meaning and scope that satisfies him?

This rule considers too and excludes any previous statement as proof of the alleged facts, because one cannot corroborate ones own statement.

Moreover, if one makes two inconsistent declarations, it is as if the court were in the presence of two different personalities.

The only one that must be retained in court must be the one made on oath.

In practice however, none is retained.

Even under oath, speech is questioned and the double-talk witness casts a shadow on his personality and deprives himself of credibility.

A person in good faith make a statement after an accident, yet not be called as a witness.

Much later on he may swear that what he said a long time ago was true. It is then possible to cross-examine him. But time changes and blots out many things; verification that has not been made in time will meet with many difficulties, as to the circumstances in which the statement was made : Sir Rupert Cross says very well, in a concise and vivid way, that « cross-examination is in its immediate application of the testing process. Its strokes fall while the iron is hot ».23

In Sparks V.R., the trial could take place only because the Sergeant made a confession to the police (though he afterwards retracted it). It could not be based on the declaration of the mother who brought the action in consequence of what her little girl told her.

If the little girl had been old enough to give evidence, and had given evidence, and if for her part, the mother had testified that the daughter had complained to her shortly after the aggression, the statement of the mother would not have corroborated that of the daughter.

If it had been able to prove something, it would have shown that the little girl had stuck to her accusatorial words, which would have strengthened the credit one might have given to her evidence.

Therefore, one can take into account a previous declaration or a hearsay statement only to show that they did occur. If the witness seeks to induce the court into thinking that this statement is true, then it becomes inadmissible.

One can testify to their having occurred, since it is a fact that they did occur.

Of course, one thinks of an action in defamation. Still, in this case, one can call a witness and give evidence of the fact that the statement was made, but not to comment otherwise on the statement.

When a witness says, « I do no know…No… I never said that », it is possible to call another witness who will only repeat what the former said, in order to prove he said it.

If the little girl in Sparks V. R. had been able to give evidence, and that the prosecution had said she consented, she could have had her mother called, who would have repeated her daughter’s first statement in order to negative this consent.

The hearsay rule applies to written particulars as well.

23 Cross, Sir R. Cross on Evidence, p.?

In Miller V. Howe24, a man was suspected on reasonable grounds of having committed a traffic offence while driving his car. He was required by a policeman to provide a specimen of breath for a breath test, whereupon the policeman arrested him and took him to the police station. There he was given an opportunity to give another breath specimen, but he did not want to do so, no more than any other test, and broke the device against the wall.

In court, the respondent contended that there was no case to answer since the policeman had failed to prove the device was the model the Secretary of State approved.

When the police constable was cross-examined as to his having stated that it was actually an « Alcootest (R) 80 », he said he knew it to be so « because it said so on the box »25. The box was not produced in evidence, no more than the device itself since the police practice was to destroy it after use of its corrosive substance.

The police officer’s evidence that he had used a legally recommended device was totally questioned and it was argued that the label on the box (even if the box had been produced) was « written hearsay »26, and that therefore police evidence was inadmissible.

The police constable had called four other officers. But English law does not make proof out of an accumulation of testimonies.

In other countries it is quite logical that if the police are to have breath-testing equipment at their disposal, these are almost necessarily the ones that are supplied by the government service. Consequently, there will be a presumption that the police used the approved model, unless the defendant proves the contrary, which is almost impossible.

In England, English people do not reason with the concept of administrative corps. It is one individual who accuses, and he/she must prove entirely what he has put forward.

In this case, the prosecution maintained that it was not necessary to identify the device, since the charge was that the accused had not wanted to submit himself to the test.

The defence reversed the problem and bore on the concrete object of this test : in effect, if this measuring instrument was badly gauged, it might give a different alcohol rate, and the offender would be wrongly accused.

24 Miller v. Howe (1969), ALL E.R.451.

25 Ibid., p.452.

26 Miller v. Howe (1969), 3 ALL E.R., p.452.

In consequence, the Court of Appeal ruled that « proof of the identity of the device was essential »27, but it was not necessary to produce it since it was to be considered as a chattel.

As far as the question of « written hearsay » was concerned, the Lords decided this was not inadmissible evidence, but only partial evidence. Had the police constable described the device « from his knowledge and experience »28, his testimony derived from his professional experience would not have been rejected.

The Court of Appeal sent the case back to the justices, « to consider the submission of no case in the light of the court »29.

The English care of obtaining the best evidence, is sometimes carried very far. English lawyers are occasionally the first to criticise the rigidity of their rules : formerly one was not allowed to testify to one’s own age and birth date.

Now the logbook of a car is not admissible proof of the engine number, because it is just a private document, for the private use of its owner, to be inspected by the police or a local taxation officer only30.

In Jones v. Metcalfe31, an independent witness saw a lorry pulling out into the path of a Volkswagen motor car, causing it to drive erratically on the road until it collided with a Morris car. The defendant admitted he was the driver of this very lorry at that time. He denied having anything to do with the accident, and having been the cause of it.

At the trial, the witness was absolutely unable to remember this registration number, and the evidence of the policeman to whom he had repeated it, albeit on oath, was held to be inadmissible hearsay. Since, in spite of all, it was the witness’ evidence, had the latter testified that he had verified the policeman’s writing it down correctly when the accident happened, he would have been allowed to refresh his memory with the note.

Here, the only available evidence was the indirect second-hand one of the policeman, though he had been a mere instrument of the witness’ evidence : the « connecting link »32 was missing. Lord Justice Diplock’s account is very interesting in that he shows the English mode of reasoning : « … the inference of fact that the appellant was the driver of the lorry at the time of the accident is irresistible as a matter of common sense, but this is a branch of the law which has little to do with common sense.

« The inference that the appellant was the driver of the lorry, and to the policeman when he gave him the umber of the lorry, and since what he had said to the policeman would

27 Ibid, p.454.

28 Miller v. Howe (1969), 3 ALL E.R., p.454.

29 Ibid., p.524.

30 R.V. Sealby (1965), 1 ALL E.R., 701.

31 Jones v. Metcalfe (1967), 2 ALL E.R., 205.

32 Ibid, Lord Parker, p.207.

Page 46

have been inadmissible as hearsay, … to infer what he said to the police is inadmissible also »33.

Then Lord Diplock states the urgent of reforming the law of evidence, that sometimes goes against common sense for whereas it is built upon the apparently logical sequence of events, it is nevertheless « absurd »34 :

« If the independent witness gave the number of the lorry to the policeman, the policeman had written it down in his presence, the policeman’s note could have used it, not to tell the magistrates what he told the policeman, but to refresh his memory. »

Judge’s ruling that the case was totally clear, convicted the lorry driver; this conviction was « reluctantly »35 set aside by the Court of Appeal.

This example confirms the importance of oral testimony in English law. Immediately after the accident, when facts were totally fresh, and he had given his statement to the police, it was quite natural that the witness should have relinquished the effort of memorising the number. Being that he had stopped the lorry and shouted to the driver that he had been the cause of the accident, there ought to have been evidence of identification of the driver, or of the kind of vehicle he was driving. At this stage of trial, there remained no substantive evidence on behalf of the witness.

Obviously, as far as a registration number is in issue, one knows it or not. But the prosecution must prove their case and since the driver denied his causing the accident, some direct evidence was absolutely necessary in law.

Let us not forget that English police are not a sworn official corps and their oath needs corroboration as that of any other citizen.

It looks quite evident that when one has identified the lorry and its driver, as being on the premises of the accident at the time of the accident, it is as sufficiently reliable evidence as the one which would include a hypothetical refreshing of the memory where the number has gone out of the witness’ mind; it has been said that the distinction between reliability and admissibility had become too sharp to be comfortable. The hearsay rule, driven in its logic to the absurd, is positive in that it reveals the scruples one must have to accuse someone without perfect proof of his offence. But such examples show the desirability of reforming the hearsay rule in order to maintain the proper balance between defence and prosecution.

If the little girl’s declaration in the criminal case of Sparks v. R. had been allowed through her mother, in court, a conflict of identification would have arisen since she had said her aggressor was « a coloured man », whereas the Sergeant was a white man; there would perhaps have been no conviction.

33 Jones v. Metcalfe (1967), 3 ALL E.R., p.208.

34 Ibid., p.208.

35 Ibid., p.208.

Page 47

Some legal currents would like the suppression of the hearsay rule, with judge’s discretion counterbalancing any ensuing difficulties as far as the defence might be prejudiced.

Rules are certainly more comforting, far easier to apply (it is « the lure of scientific order »36, and this current, favourable trend towards an enlargement of the judge’s discretion, requires absolutely upright men, whose measure of Appeal is not desirous of interfering with that discretion.

A technical point of law as to whether verification and confirmation by tape recording of what a policeman had heard was to be considered as mere hearsay was raised in R. v. Rose37.

Three men charged with burglary and larceny « shouted incriminating remarks to one another across the corridor »38 that divided the cells in which they were separately confined, waiting for the trial.

A policeman used a tape-recorder as an aide-memoire « to check and improve his own notes made from memory », to verify and render accurately what they told him at the police station.

At the trial the three men were convicted. They appealed because they claimed the policeman’s use of a tape-recorder – in some way to perfect his memory – was inadmissible as being hearsay evidence.

The Appeal judge ruled that owing to the circumstances, prisoners shouting through their cell walls after they had been cautioned according to the judge’s Rules : « whatever you say will be taken down in writing and may be given in evidence… » – recorded evidence was no hearsay evidence, but « primary »39 direct evidence, « an extension… from a note made contemporaneously… of what (the policeman) had himself seen, read and adopted as accurate. »40

The tape recording was to be considered as any other instrument – pen for example – used to take down what had been witnessed.

In civil law however, the hearsay rule has now practically disappeared, because of the large number of exceptions. Throughout the years, they have added themselves to the rule, making it more supple, and sometimes, awing to their great number and backlash on the other rules, have come to support the contrary of what they were meant for in the beginning.

Exceptions in criminal law bear on situations in which the individual is liable to speak the truth :

36 Lord Quest quoting Cardozo, J.

37 R. v. Mills R. v. Rose (1962), 3 ALL E.R. 298.

38 Ibid., p 298

39 Ibid., P 301

40 Ibid., p 301

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When someone, directly involved in the issue, has just undergone a shock, or wants to express what his physical or mental state was when he made his declaration, this is admissible.

In R. v. Nye and Loan41, Loan said his identification as his aggressor by Lucas, after the latter’s car had been crashed into by the car where Loan and Nye were sitting, was wrong, and that the policeman merely repeated the prosecutor’s evidence without any proof of it.

The Court of Appeal held there was surely no miscarriage of justice and the evidence was safe since when the police arrived, Lucas was still recovering from his injuries, which in all probability could not have allowed him to concoct a story.

A mere observer, however, will not be able to testify to this state.

In a case of murder, it is thought that someone who feels that his death is impending speaks the truth. Nevertheless, the victim must give proof that he was certain he was going to be killed.

One must find in his statement the mark of spontaneity, a proof that he did not have time to contrive anything for his own advantage « or the disadvantage of the accused »42.

This is what is called the « res gestae » doctrine.

« Human action may be (…) so interwoven with words »43 that out of their own circumstances, these statements sometimes mean nothing. Within their context, they enlighten what happened.

Whether such statements are admissible or not depends on the judge in a preliminary hearing.

In Ratten v. R.44, a man was charged with having deliberately shot his wife whereas he pleaded it was a gun-cleaning accident.

The gun had not been used since its return from the gunsmith, and the accused could not account for it being loaded.

The cartridge in the first barrel had not ignited, but the second barred was discharged.

The accused was perfectly experienced in the use of firearms.

41 R. v. Nye, (1977), 66 Cr. App. Rep. 252.

42 Ratten, v. R., (1971), 3 All E.R., 808.

43 Teper v. R., (1952), 2 All E.R., 447.

44 Ratten v. R., (1971), 3 All E.R., 801.

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In his signed statement to the police, he said he had « immediately called for an ambulance and that shortly afterwards the police telephoned him, on which he asked them to come immediately »45.

To rebut what he had said, the prosecution called a telephonist at the local exchange, to testify that a call had been made from the house :

« I plugged into a number at Echuca, 1494, I said – so I opened the speak key and I said to the person, ‘number please’ and the reply I got was ‘ get me the police please’. I kept the speak key as the person was hysterical…

His Honour : You what?

Witness : I kept the speak key open as the person was in a hysterical state (later the witness added that the person sobbed) and I connected the call to Echuca 41 which is the police station. As I was connecting the call the person gave his address as 59, Mitchell Street and hung up »46, the witness told the police to go to this address.

The prosecution objected to what it called a hearsay testimony, directed as evidence of the truth stated in it.

It was held there was quite close connection between :

1) The call the victim was said to have made and the shooting. The accused’s father called him at 1.09 p.m. for 2.9 minutes. The exchange of talk was quiet, calm and normal; so was the future victim’s voice, that he could hear in the background. The telephone call answered by the telephonist was made at about 1.15 p.m., from the house. At 1.20 p.m. the police called the husband. The wife had already died.

2) The fact that the telephone call was made to the police, and the state of emotion, showed the person was shocked by events. Moreover it was proved the husband was alone at his home with his wife and children.

If we hark back to the case of the little girl in Sparks v. R., the indecently assaulted child’s statement was made too long after the event occurred for it to be taken into account and form part of the « res gestae ».

She did not utter one word about it to the police when they took her back home, and she was restored to her about one hour a half later.

Evidence of anonymous telephone calls has been admitted as an exception to the hearsay rule in the libel action of Jozwiak v. Sadek and Others47, to identify the plaintiff with the libel.

45 Ibid., p 804.

46 Ibid., p 804.

47 Jozwiak v. Sadek and Others, (1954), 1 All E.R., 3.

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The libel was issued in a Polish newspaper, in tale-form, but it appeared crystal-clear to the plaintiff that it was intended to refer to him.

Two persons had committed suicide out of financial difficulties and the chairman of an association was said to be the cause of it.

The fact actually happened with well-known Polish émigrés, before the newspaper was issued, and the plaintiff was the chairman of an association gathering Polish members for financial reasons, and to assist them too.

The defendants agreed on the significance given by the complainant, but denied that he was the person in question.

They pleaded it was hearsay.

Telephone calls stating that the complainant was a « murderer »48 were held to be decided in the same level as backing evidence of neighbours, whether in the same street or the same district.

These persons « knew the special circumstances and might understand the words as having the meaning referred to »49. Therefore their statements made in a Polish public community were admissible to show that these persons had identified the subject of the libel as Mr Jozwiak.

The jury however, was instructed to be very cautious of this kind of evidence, which could not be held to be of great value.

3. Cross-Examination

So privileges on the one part, hearsay rule on the other, are the two great precepts that restrict the contents of the examination of testimonies, though they do not prevent them, and more over, they counter the possibilities of fabrication of evidence.

The former has statutory force, the latter gets its authority from the long-standing rulings of judges.

Now, how will the court ensure that what witnesses are allowed to say will be the most reliable?

The decision of the jury does not rest only upon the story witnesses tell. The want of an assurance that the testimonies are true has led to their close verification through a system that the English call « cross-examination ».

48 Jozwiak v. Sadek and Others, 1 All E.R., (1954), p 4.

49 Judge Ormerod, in Jozwiak v. Sadek and others, p 4.

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This procedure of examination of testimonies is deeply-rooted for it can be traced as far back as the existence of the jury, ie, the Middle Ages, though there is practically no longer any jury for civil matters, except in libel cases, it still survives and is familiar to lawyers who deal with the different cases.

There is no objective enquiry into truth based on all the available evidence, but a contest between the prosecution and the defence to prove to the satisfaction of the jury that the accused is innocent or has really committed what he is charged with.

Cross-examination is so called because both parties in turn, have the right to examine the adverse witnesses.

The testimony of a man send another man to prison, even to swear away his life, therefore this driving of the witness to the wall is extremely important to allow the truth to come to the fore.

The aim of cross-examination is to question the credibility and morality of the witness and of course to elicit information concerning facts relevant to the issue that are favourable to the party conducting the cross-examination.

Thus it comes in time after the prosecution has presented its own witnesses during the examination proper, the purpose of which is to support the version of trial is not inquisitorial but accusatorial, and it is the prosecution that opens the case. The presumption of innocence « ensures that the prosecution have the legal burden of proving guilt ». They must prove « on a balance of probabilities » in civil cases, « beyond reasonable doubt » in criminal cases.

If a witness is not contradicted on a fact, it is of course assumed that this fact is not disputed.

The cross-examining method may vary according to the personality of the cross-examining counsel. Some of them, as we saw once in the « Old Bailey », will enjoy threatening a young accused, try to get him out of his depth and induce the jury into disbelieving him. For this purpose he would repeat the witness’ assertions in a thundering voice to have the accused feel uneasy, endeavouring to cast doubt on the veracity of his alleged statements and having the truth come out of what looked like a « psychodrama ».

Others will just lower their voice, endeavouring to lull the witness into a feeling of confidence. But such a cross-examination method will often be more effective in revealing discrepancies in the witness’s statement.

Cross-examination allows what is not permitted in preceding examination proper, ie, « leading questions », which either suggest the desired answer or the existence of contested fact to which the witness is to testify. This type of questioning is forbidden in the examination in chief so that the witness should not become a mere mouthpiece of the party calling him. For example, the cross-examiner might say : « When you went out of your house, you met William Jones who was leaving your friend’s house with

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something hidden in his coat, didn’t you? », or else : « Did you hear what M. said? », if the presence of M. or the fact that M. said something were in dispute and yet unproved by the witness.

Leading questions are allowed in cross-examination because they can be a good method of verification not only of the veracity or accuracy of facts to which the witness has deposed, but also of their interpretation in the cross-examiner’s mind.

Cross-examinations can extend beyond the subject matters of the evidence given by the main testimony, provided that the questions are relevant to the issue.

Those however which suggest the existence of facts which are not in evidence are considered improper, if not oppressive by the law, for the cross-examiner may not respect the witness enough, or may be trying to mislead the witness and the jury by false assumption which may distract the jury from the real issues and so lead to an unfair trial. The court generally disallows them and recommends that they should be put in an interrogation form instead of an affirmative one : « you did » must become « did you? ».

The art of the counsel must be employed in this extremely rigorous sifting of the witness to ascertain whether the facts to which the latter has deposed are true or not, their understanding by counsel correct, and furthermore bring forth and elicit all the information the witness has not given.

Cross-examining rules must give the witness the opportunity of explaining an apparent contradiction, or give the necessary precisions.

a) Testing the accuracy and memory of witnesses

This is the simple verification of what witnesses have just said, for the judge, in his summing up for the jury at the end, reminds them that conviction is not always a synonym for truth.

There the witness is asked when the event happened, at what time, where it took place, what the witness saw, what he heard, if he was in a good position to be a reliable witness.

Whether he was involved in the event or not, and what his part was; also what was the nature of his relationships with the accused or prosecutor.

Very early during the trial, the witness must prove to the jury that the exactitude of the facts he relates has not been affected by one of these three causes : « his bad qualities as an observer, his error or his lie »50. This is obviously the elementary principle of verification common to different countries.

50 Garraud, op. cit., 11, N° 373, quoted in Le Juge d’instruction (Chambon, Pierre, Paris, 1972, Dalloz, p. 226)

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The examination of testimonies begins with the exercice of common sense, observation and a certain knowledge of human nature, for the witness’ attitude is a tell-tale of what he is, and the reflection of what he says or conceals.

A witness who will answer distinctly, without any hesitation, in a simple and clear style, certainly is a more sincere witness than the one who wavers, hair-splitting on unimportant points, or else, as quick as a flash of lightning, albeit he stresses heavily on details that have but a remote connection with the facts at issue.

This attitude is a very useful guide to good cross-examiners : the slightest hesitation in witnesses who have to give identification evidence, will not go unnoticed.

Normally, testimonies reflecting a witness’ opinion must be rejected. Identification is one of the exceptions to the rule. But it circumstances must be extremely closely verified, because identification is most often the result of different factors involving not only the observation faculties of the witness, but also his motives, for he may be led and even dazzled by a spirit of revenge, or just his capacity of being deluded, as for example in the famous Tichborne case51.

The great ambition of Orton to appear to the word in a better social position than he actually was, met with the extraordinary coincidence of an advertisement in a newspaper, stating that a mother was seeking her son lost in a shipwreck. One of his friends actually encouraged him to assume the identity of the man in the advertisement.

Moved by his pride and the lure of easy money – Tichborne was a rich heir -, his taste for mise en scène and the wishful thinking of other people, he came to play the part of this hopeful lady’s son. Coinciding meetings with people who had been acquainted with Roger Tichborn gave him a huge amount of information about the dead man that he explained in his confession : his mind « became so thoroughly caught up that I (he) really believed I (he) was the man they said I (he) was »52.

The imposter went to see his « mother » on her request and on the first occasion he met her in a dark room. Strange as it may appear, the lady recognised her « son », which was affirmed to the press by the man’s solicitor.

The mother’s acknowledgement, the various pieces of information that « Roger Tichborne » obtained from different sources, which he was able to present to different identifiers, backed one another up. He had made a will leaving his mother all his property, and later took steps to enter into possession of his estates.

51 Reg v. Castro, otherwise Arthur Orton, otherwise Sir Roger Doughty Tichborne, Baronet, (1873), L.R. 9 Q.B., 219

52 Orton’s confession in The People, 1895, quoted by Best, W., Principles of the Law of Evidence, Book III, Part II, p 447.

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The mother was not cross-examined about her affidavit to identity, though the imposter had given her a Christian name suited to the circumstances, and did not call her by her real first-name.

Cross-examination of some near relations of the deceased gave intimate, distinctive details of marks on the real Tichborne : tatoo marks and physical aspect, though both men looked much alike.

The vessel’s captain identified « Tichborne » as the real man he was, and said he had « conversed with him for hours, but couldn’t detect any instance where he really recognised himself as Orton »53.

Most people think there is no possibility of being mistaken as to the indentity of the offender, chiefly if this man has aggressed them.

According to the Criminal Law Revision Committee54, « mistaken identification is by far the greatest cause of actual and possible wrong conviction ».

Then, nowadays, there is practically no longer any first identification in court, for it has been proved that being an accused in the dock who resembled the person they complained od to the police, acted on witnesses as a suggestion he was bound to be the right man the police had caught.

Consequently, it is now laid down that the police make certain the accused is the right man being complained of, and cross-examination of the witness’ testimony about identification is as much a cross-examination of the necessary precautions by the police to find out the man the witness really saw.

In John Walters’ trial55, on cross-examination, a young lady who had accused him of having indecently assaulted her and caused her bodily harm, admitted that she had not been sure of herself when she told the police that this man was her aggressor, though maintaining at the same time that she had been « sure it was him all the time ».56

The accused said the police had held an identification parade where he could not look as anonymous as the other men, for he was the only one to wear his own glasses, and not standard glasses, he had also been seen by the girl, waiting alone in the police station just before the identity parade was held, for a woman police constable took her into the room, and when she became aware of her error, she put a chair acroos the door to keep it closed.

53 Orton’s confession in The People, 1895, quoted by Best, W., Principles of the Law of Evidence, Book III, Part II, p 447.

54 11th Report, paras 198.203, quoted by Cross, Sir R.,in Cross on Evidence, p 98.

55 R. v. John Walters (1973), given as example by Justice in Evidence of Identity, E & E Plumridge Linton, Cambridge, 1974, p 25.

56 R. v. John Walters (1973), in Justice’s in Evidence of Identity, E & E Plumridge Linton, Cambridge, 1974, p 26.

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Then during the identity parade, as she was hesitating before Walters and asked to see him without glasses, the policeman asked her « Is it or isn’t it? »57, and her reply had been « I think so »58.

Obviously, identification needs corroboration by other evidence. Question 9 of our questionnaire was precisely stressing the point. The very laconic answer of the Leeds P.C. appears surprising. The Superintendant of Sheffield replied it is always looked for, by circumstancial evidence ».

In consequence, it was pressed by the Devlin Committee that no testimony resting principally on visual identification of the accused would now lead an accused to conviction, whatever the number of witnesses.

In R. v. Conlin & Jones59, Conlin and Jones were accused of having robbed a farmer. He said the robbers had come by his farm at dawn, wakening him, the one shining a torch into his face, the other threatening him with a shotgun. Both were wearing cloth masks.

« On the information of an alleged accomplice »60, the police arrested Conlin and Jones; the farmer identified them as the robbers.

He said to the police « one was in his twenties, about 5’7″, thickset, heavy built, darkish curly hair with a white cover over his face with eye-slots. He had a southern Irish accent. The other was a smallish man, slim built, 5’2 », dark hair, long at the back, thin face and with a North country accent, probably Scottish or Newcastle »61.

This description was given to the press to enable the police to find witnesses.

Conlin was identified by the farmer in the Magistrates’ Court, on the latter’s coming for a motoring summons, whereas Conlin was there, handcuffed to a policeman because he had been brought up on remand. The farmer saw him, told the police he was one of the burglars.

Conlin was about 5’10 », and thirty-five years old.

Jones, about 5’10 », thirty-four years old, was picked out on an identification parade. Five police officers swore that all other persons on the parade were the same age and had the same build as Jones.

The defence brought one of them to court : he was 6’2″, five of the others were between twenty-eight and twenty-four years old, and two were eighteen years old.

57 Ibid., p 26.

58 Ibid., p 26.

59 R. v. Conlin & Jones (1971) quoted by Justice in Evidence of Identity, p 22.

60 Ibid., p 22.

61 Ibid., P 22.

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In cross-examination, the farmer mainained he was certain Conlin and Jones were the robbers.

Prosecuting counsel asked leave to recall the Inspector in charge of the case.

The Inspector assumed the farmer had told him privately62 in the farm that « the men were well-built, had Scottish accents, were thirty, thirty-five years of age and were both 5’9″ or 5’10 » in height, and one was more thickset than the other »63.

The inspector however had made no note of this description, nor spoken to his Sergeant about it, and approved of the description of the farmer’s statement given to the press. Moreover, these descriptions « did not appear in any notice of additional evidence »64.

There was a conflict of identity, but the Inspector’s evidence was hearsay, and the farmer was not recalled to confirm this contradictory statement.

The Court of Appeal stated that what is important is the quality of the testimony. « If this is poor the judge should direct an acquittal in the absence of supporting evidence »65 and it finalised a series of rules to be followed, non respect of which may quash the conviction because the case may be « unsafe or unsatisfactory »66; since the 1966 Criminal Appeal Act, the Court of Appeal has power to set aside jury decision and over-rule a conviction if, from the general impression of the Court, there is « some lurking doubt in our (its) minds which makes us (it) wonder whether an injustice has been done,… by the general feel of the case as the court cross-examination it »67.

In R. v. Cooper68, two young girls went for a walk together. One of them was surrounded by three boys. As soon as her friend became aware of their drunkenstate, she tried to help her. Then one of the boys came towards her, and hit her violently, and repeatedly.

Probably only by chance the appellant joining his friends, found himself on the scene of the aggression just after the young girl had been hit two heavy blows. The latter saw no one but him (« she never looked at anyone else »69 and was able to keep in her memory the face she identified six weeks after the event, immediately picking out the appellant in the identification parade.

One of the boy’s friends who took his defence during the trial sought to exonerate him by imputing it to another boy, but he was discredited in cross-examination when the

62 R. v. Conlin & Jones (1971) quoted by Justice in Evidence of Identity, p22.

63 Ibid., p 22.

64 Ibid., p 22.

65 Cross, Sir R., Cross on Evidence, p 59.

66 R. v. Cooper (1969), 1 All E.R. 32, headnote.

67 Criminal Appeal Act S4(1) amending S4(1) of C.A.A. 1907.

68 R. v. Cooper, p 34.

69 R. v. Cooper (1969), All E.R. 32 ( ) Ibid, p 33.

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court was reminded, that he was the one who had denounced his friend to the police as the aggressor. Another friend of the accused, who came to see him in jail, in the presence of another friend, learnt the culpability of this other friend, whose intention was just to let things pursue their course, for he had a bad record and risked several years imprisonment if it became known that he was the culprit.

Evidence was given of the striking resemblance of this latter with the accused.

Although the jury was instructed of this by a photograph of his sosie and a warning as to all the circumstance, they nevertheless found the accused guilty, who was hence sentenced to eighteen months imprisonment. The Court of Appeal discharged the appellant.

R. v. Cooper marked an epoch in legal history with the enactment of the intervention of the Court of Appeal when every issue had been before the jury70 and the summing up of the Judge had been completely fair.

There had previously been an alert to unsatisfactory identification and it hed been advocated that « unless supported by other cases »71, an identification verdict ought to be considered unsafe.

This was requested in 1905, by the Departemental Committee appointed in consequence of a miscarriage of justice because of the famous and bewildering mistaken identification of A. Beck. A. Beck was twice imprisoned, for several years, for frauds on women, thirteen of whom who had been the mistresses of the offender having identified Beck as the man who had deceived them.

Truth came to light only when the real offender, an ex-convict, was arrested on similar charges, while Beck was still in prison.

The Committe advised then that there ought not to be on the part of the police, that is to say non-identification, and certainty that such or such a person was not the accused. It was advised that these witnesses could be called in court.

This remains but a strong recommendation. It is obviously of huge importance, for once they have identified an accused, witnesses in court have much difficulty in going back on their decision.

Conlin and Jones was an unfortunate case, for as much as testing the memory and accuracy of a witness on the facts in issue, the technique of discrediting him by reference to earlier inconsistent statements is very important in cross-examination : it attacks the very foundations of the witness’ story, and more, it questions the reliability of the rest of his testimony.

70 Departmental Committee quoted by Best on Principles of the Law of Evidence, Book III, Part II, p 450.

71 R. v. Sikes, quoted by Barnard, D. in The Criminal Court in Action, p 20.

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b) Previous inconsistent statement

In R. v. Sikes ( ), Sikes was accused of having stolen a record : he was said to have entered a supermarket, taken the record, hidden it in his bag, and left the store without paying for it.

In the examination in chief, prosecution witness, the store detective, gave evidence that after he took the record, he went to another quiet counter, and transferred the record from the store wire-basket into his bag;

Defence Counsel : After Mr Sikes left the record display, he went to the frozen food counter?

M F Yes.

D C And the record was in the basket.

M F I’ve already said that.

D C Quite so. Now there were quite a few people by the counter, weren’t there?

M F No.

D C Are you sure about that?

M F Yes.

D C You see, the defendant will say that there were three other people – at least three –

M F Well, he is wrong.

D C Do you remember making a statement to the police last September?

M F Yes.

D C Perhaps she could be shown the original statement. Is that your signature at the bottom?

M F Yes.

D C And at the top you have signed a declaration : « This statement consisting of two papers each signed by me is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I wilfully stated in it anything which I know to be false, or do not believe to be true. » You read that before signing it?

M F I suppose so.

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D C Miss F! This is a serious matter. Do you remember reading that through?

M F Yes.

D C And you no doubt took great care when you wrote it out to remember exactly what happened.

M F Of course.

D C And the events were still fresh in your memory then?

M F Yes – they still are.

D C Now just read to the jury the passage beginning « He went to the frozen food counter… » That’s page 2.

M F Oh – er – yes I see. « He went to the frozen food counter. » (pauses)

D C Go on.

M F « There were only a few people there. He put the record into his bag and put some frozen vegetables into the basket. »

D C So there were people could have seen him put the record into his bag?

M F They were looking the other way.

D C You remember that, do you?

M F Yes.

D C But a few minutes ago you didn’t remember any people being there. You see you’ve just told the jury on oath that you were sure there was nobody except the defendant.

M F I have forgotten.

D C And now you’ll suddenly remember them.

M F Yes.

D C And suddenly remember what they were doing.72

Defence counsel was to show this witness her previous statement since it was destined to contradict her, following the 1865 Criminal Procedure Act73 : …if it is

72 R. v. Sikes, in The Criminal Court in Action, p 23.

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intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of the so contradicting him; provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit. »

This proviso was respected by Sikes74 defence Counsel when he said to the jury: « Perhaps she could be shown the original statement. Is that your signature at the bottom? »

This is an important point, for it shows that the witness cannot be freely aggressed : the proviso affords him a means of explaining why he so obviously appears double-tongued.

The contents of the original statement could be evidence of the facts stated, because she recognised her first declaration as the right one.

Had she rejected it, she would have been contradicted on it through the second one, but neither would have proved anything : the jury would have simply been confronted with a discredited witness with contradictory statements, one of them being mere hearsay. Had Miss F. denied having made the first statement, there would have been no need to call another witness to prove she had said so, since it was written statement. Let us note that counsel for the defence is assisted in his cross-examination by the committal statements he has before him.

Whatever both her statements might have been, Miss F. did well to appear as a prosecuting witness.

Such witnesses whose testimony is not clear (« I suppose so… « I have forgotten »75, for whom truth does not appear as a very important matter and who are not scrupulous, adopt a position before the trial, and then reverse it.

c) The hostile witness

What happens then when a party’s witness changes his mind, changes sides so as to give evidence in favour of the opposing party?

By which means can the court verify his declarations and know which one, the one among all the different statements he has given, is the true one, the one which carries the correct moral responsibility, the one which can be relied upon and followed up?

73 Criminal Procedure Act 1865, S.5.

74 R. v. Sikes, quoted by Barnard, D. in The Criminal Court in Action, p 23.

75 Ibid., p 23.

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According to the general procedure, none of the measures taken by the adverse party can be applied to its own witness, for he has been called as a witness for truth, and the court then supposes that the examination has been deepened in time, and because, as stated in Buller’s Nisi Prius « A party shall never be permitted to produce general evidence to discredit his own witness; for that would be to enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hands of destroying his credit if he spoke against him ».

The rule has been established to guarantee the trustworthiness of the evidence it provides, and also because it would be unfair and discouraging for witnesses if they were cross-examined twice.

But perhaps there is another more fundamental reason, that reminds us of the Hebrew law according to which a witness can always go back on his accusations to declare the accused innocent (but the reverse is not admitted).

Thus the positive aspect of the law is to leave a man the possibility of retracting his accusations, if he knows they are not true, and his conscience is given free rein to clear the accused of the charge.

A hostile witness is quite a different witness from he who merely fails to state the facts, and which the English law merely sees as « unfavorable ». A hostile witness is perceived as someone who « does not desire to tell the truth in court at the instance of the party calling him; he then. « bears » a hostile « animus » (intent or motive)76. For example, he can just stand obstinately mute.

Nothing can be done against an unfavorable witness : no cross-examination is possible and the party calling him can just call for another evidence.

At any rate the party claiming his witness is hostile must show that he has some improper motive or reason for turning against that party.

Assessing the hostility of a witness remains within judge’s discretion, who will decide it from the way the witness behaves; if he unexpectedly flies into a passion against the party calling him for example.

According to the common law tradition, if the judge, taking care that nothing should be excluded, declared him hostile, the witness can be tested as to the accuracy of his memory and senses; the means by which he has acknowledged the facts he stated can be queried or else another witness can be called to contradict his testimony.

Doubt must not be cast upon his general personality by referring to his evil conduct in the past or by implying that he is a liar. Thus the judge permits cross-examination in the same way as towards any other opposing witness having made a previous inconsistent statement.

76 Cross, Sir R. Cross on Evidence, p 249.

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The fact of having earlier made a different statement could be taken into consideration only from the time attorneys begin to take proof of evidence a person was to give in court.

Now the judge, at his discretion, builds upon any previous contradictory statement and the circumstances in which it was made, thus fully answering Erle C. J. in Melhuish v. Collier77.

« There are treacherous witnesses who will hold out that they can prove facts on one side for a cause, and then, for a bride or for some other motive, make statements in support of the opposing interest. In such cases the law undoubtedly ought to permit the party calling the witness to question him as to his former statement, and ascertain, if possible, what induces him to change it ».78

Consequently, the 1865 (S3) Criminal Procedure Act enabled the court to permit the party calling the witness to cross-examine him as to any different previous statement he has made, in criminal as well as in civil cases, exactly in the same way as he would be cross-examined by an opposing party. Here is this law, still in force : « A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mention proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement. »

This last provision enables the adverse witness to explain any inconsistency and sometimes there may ba a means of perfect explanation, that would show a defect of memory for example.

The party’s witness must be contradicted only as regards facts relevant to the issue, and the earlier statement, whether it was oral or written, when proved or admitted, cannot in criminal cases be used as evidence of the facts stated.

If a man proves to says something which is in contradiction to what he has previously said, this very contradiction offers a ground for disbelieving him but it is no use considering all statements on the same level, and have the jury choose the most trustworthy one! None is meaningful and any subdtitution may be but a delusion.

If during the course of cross-examination however the witness admits the truth of the former statement, this one shall be of course recognised as evidence of the facts stated, because an oral testimony on oath is indeed much more reliable. Otherwise the judge merely asks for other evidence to be advanced, by other witnesses who will prove the case or not.

77 Melhuish v. Collier (1850), 15 Q.B. p 878, p 890.

78 Ibid, p 890.

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In civil cases, on the contrary, the previous written statements may become evidence of the facts stated, under the Evidence Act 1938, and the Civil Evidence Act 1938, and the Civil Evidence Act 196879 : « Where in any civil proceedings (a) a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of section 3 of the Criminal Procedure Act 1865, … that statement shall be admissible ad evidence of any fact (or matter) stated (or dealt with) therein of which direct oral evidence by him would be admissible. »

This means that the tribunal of fact is able to act on the statement as well as on the testimony.

Therefore in criminal cases, the previous inconsistent statement permits the testimony to be judged as unreliable as well as the statement, and in civil cases the acceptance of the statement entails the rejection of the testimony to a certain extent, since the jury or judge have to choose between both possibilities.

But how is it, when this « adverse » witness has lied twice? The jury in fact are twice warned : by the cross-examiner, and by the judge, who has allowed this cross-examination and who, after re-examination, sums up the case for the jury. In criminal cases, there remains the principle that an accused person cannot be convicted on the basis of unsworn testimony.

In civil cases, if the witness does not accept the content of his previous statement, because he has been forced to make it, because he has trusted the policeman who was « over-enthusiastic »80, and did not verify the statement that has been written down for him, or he has been wrongly advised and the police did not cross-examine what he said, then he is not however caught up in his former statement, but he simply will be a man with two tongues.

A very interesting and important question seems to rise from the distinction the English law makes between « unfavorable » and « hostile » witnesses. For an unfavorable witness is one who not only fails to prove the case, but may also prove the contrary.

We remember, in London Central Criminal Court, the director of a clinic for mentally handicapped people, as he was testifying against one of his attendants charged with sexual intercourse with a young patient.

This director’s emotion was so great that whenever he could utter a few words, he stuttered in a moving way. This man proved his case, but we understood how terrible it is for a man to swear away one’s assistant’s career, even when the latter is guilty. Human feelings are not always well mastered, and we imagine that, in some cases, by an absurd detour, a witness could demonstrate exactly the reverse of what he is giving evidence for.

79 Civil Evidence Act 1968 S. 3(1) (a).

80 Justice.

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This is certainly quite different an attitude from that of the witness flying into a passion or standing maliciously mute against the party calling him. But there are certainly cases where a witness’ demeanour is not so obviously negative to his party, and the judge does not then allow cross-examination, thus leading Justice to underline : « the disadvantage of the present rule is that the court may be deceived by a corrupt or dishonest witness and the party concerned may be prevented from revealing the deception. »81

Obviously, the hypocritical and false witness must absolutely be exposed, and severe sanctions imposed on him.

There exists nevertheless the far more interesting case of the witness who changes his mind because he changed his heart, and decides to speak the truth. The Possibility for him to explain the reasons for his contradiction in cross-examination is vital.

The art of cross-examining counsel is to elicit what this lack of certainty, or reversal of position are due to : is it mere emotion, hypocrisy, fear because of pressure, need for truth, spirit of revenge, wickedness?

All these possible causes can be found in a biased witness.

d) Bias

Distrusting any possible bias in any witness’ testimony seems self-evident. But what is important is to examine and verify this, which English law does. Naturally, bias depends on the kind of relationship existing between the witness and the accused : bias is among the reasons why the accused’s spouse has been held incompetent until 1843; from being so close, common or opposed interest in the issue of the trial generated partiality which would have possibly entailed perjury.

Bias however is something which pertains to human nature, through temperament, education even, sometimes it is the consequence of mental laziness or of a faulty reasoning, or else it comes when emotion becomes too strong, without the necessary perspective due to judgement – and the opposite is true too.

The biased person will favour a party to the prejudice of the other.

If, when asked, a witness denies that he has a good or bad relationship with one of the parties, cross-examining counsel may prove that the relationships are actually good or bad.

For example, the question must be asked in such a manner for it to be admissible :

« Your relations were not good, you quarrelled two days before the matter happened, didn’t you? » The question has to be put in such a way as to make it plain that the

81 Justice : Impeaching One’s Own Witness, 1965, p 2.

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nature of the relationship was such as to have a direct bearing on the innocence or guilt of the defendant, and proof be made that this in fact was really so.

Sir R. Cross gives the example of R. v. Hitchcock leading case : « The defendant was charged with using a cistern for making malt without complying with various statutory requirements. One Spooner gave evidence of the use of the cistern and was asked in cross-examination on behalf of the defendant whether he had not told Cook that the excise officers had offered him twenty pounds to say that the cistern had been used. Spooner denied that he had ever made such a statement, and it was held that the defendant could not ask Cook to narrate the alleged conversation. »82

The question asked was not retained because mere words cannot prove anything. In order to be admissible, it needed to be exactly and directly relevant to the issue that was to be proved so as to bear on the defendant’s innocence. Therefore, it might for example have been put thus :

– Mr Spooner, have you received twenty pounds from the excise officers to say that the cistern had been used at the time of this happening?, suggesting then that the latter needed to give a bribe in order to have the defendant charged.

The quetion must involve the fact that the nature of the relation between the excise officers and Spooner was founded on bribery and that proof could be made in order to demonstate that their case was perhaps undefendable.

The fact that the witness might have received a bribe would be sufficient evidence of his being biased in favour of the prosecuting party and even if Spooner had denied the acceptance of the bribe, he could have been contradicted on his denial. The question : Have you ever told Cook that the excise officers have offered you twenty pounds to say that the cistern had been used, only evokes that the witness is not so credible as he should be, but does not show that his testimony is a biased one, which deliberately supports one party.

If there is no possible reference to any real fact, one sinks into some sort of accusatorial speech, wherein one is to have the last word in order to win.

To guard against this danger, English lawyers decided that all cross-examination about the credit of a witness is very informative, but parallel to the facts at issue, and as such subsidiary/ it is « collateral », unless it is so closely connected with the question at stake (in the trial) that it is directly relevant to innocence or guilt of the accused.

Subsequently, all questions, according to whether they are liable to weigh on the core of the matter at issue or remain subordinate, will determine either further possible cross-examination, or a definitive answer.

82 A.G. v. Hitchcock (1847), Exch.91, quoted by Cross, Sir R., in Cross on Evidence, p 266.

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Bias – Finality Rule

No time, no money either are to be wasted on never-ending trials on repeating side-issues; conflicts have to be settled, justice ensured : everything that might clog the trial and mislead the jury must be dismissed.

To any question having no positive value for the issue of the case, the given answers will be accepted, without any comment or contradiction.

The law says it is « final » and it appears as quite fair, for the The prosecution has to prove what it says; if it merely launches an idea, so as to test, or is too awkward for its argumentation not to appear as justified, its attack will be wanton, and as such must be brunshed aside.

Defence counsel asked Spooner whether he had not told Cook he had been bribed by the excise officers. Of course, Spooner answered he had not, and Cook’s counsel had to satisfy himself with this answer : no possibility was then afforded him to call another witness to rebut Spooner’s deniable.

Nevertheless, bias, in english law, is one of the three main exceptions under which the calling of another witness is admitted to rebut denial of alleged facts or statements whose aim is to impugn the credibility of a witness. The two others are previous inconsistent statements and previous convictions.

Partiality, double-tongue and bad disposition are three sources of possible perjury.

In R. v. Phillips83, the accused was weighed down by his daughters who gave evidence of incest. The accused appealed because he had been refused by the judge the possibility of showing, through two witnesses, that his daughters had been « schooled »84 by their mother into appropriate conduct of testimony duing the trial.

The Court of Appeal quashed his conviction, for the two witnesses might have established his innocence.

Periodically, however, English authorities wondered whether certain cases could not permit the bringing into action of collateral quetions with the aim of calling further witnesses, « to disprove the truth of the expected answers ».85

In Spenceley, qui tam v. de Willott86, for example, the Marquis de Ch. complained that a man with whom he had passed a contract, turned it into usury.

83 R. v. Phillips (1936), 26 Cr. App. Rep. 17.

84 Ibid., p 16.

85 Spenceley, qui tam v. de Willot, (1806) 7 East 108.

86 Ibid,p 108.

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Since there were no other witnesses than the parties, and the agreement was reached in confidence, it was difficult to ascertain whether the Marquis was speaking the truth or not; so as to test him, cross-examining counsel devised to demur the plaintiff about some other questionable proposition in which he endeavoured to show the same ambiguous spirit : « that he had taken up sums of money from those third persons on terms of confidence, that he was to employ the money so raised according to his own discretion (which he had suggested to them he was enabled to do to great advantage), and to share with them the profits, whatever they might be »87, so as to induce the complainant to acknowledge that he had made some contract with the defendant. « If the witness desired that such was the nature of his dealings with those persons, to call Mr S. and the other to prove the contrary, and therefore destroy the witness’ credit ».88

Judges ruled that it was impossible and unfair to introduce collateral facts; the accused would have to make head against attack, that he « could not be prepared to meet ».89

No specific fact is to be evoked.

Unless it is possible to prove the witnesses in the habit of this vice, one cannot show he is probably lying in other circumstances, concerning other events, and call other witnesses to bear this out.

e) Previous convictions

Revelation of past convictions naturally impairs the credibility of the witness. Certainly, up to a point, it tends to show his bad disposition, though one conviction can be « no disproof of good character ».90

Apart from the 1974 Rehabilitation of Offenders Act that reference cannot be make to civil convictions of less than thirty months which have become spent, and the 1975 Practice Direction that reference to criminal convictions should be avoided as far as possible; a witness can be asked about any conviction which may be proved if it is not admitted or denied by him : » a witness may be questioned as to whether he has been convicted of any misdemeanour and upon being so questioned, if he either denies or does not admit the fact or refuses to answer, it shall be lawful for the cross-examining party to prove any conviction ».91

The copy of the record of such convictions is available from the court where the proceedings were tried.

Though they are collateral facts, past convictions can be asked the witness in order to break his testimony, for it would be dangerous and wholly unfair that an accused should be convicted on the testimony of a man who has previously committed perjury

87 Spenceley, qui tam v. de Willot, (1806) 7 East 108.

88 Ibid., p 1211.

89 Ibid., p 1212.

90 Lord Simon in Stirland v. D.P.P. (1944), 2 All E.R., p 13.

91 1865 Criminal Procedure Act.

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for example. One must bear in mind that formerly, persons who had been convicted of a serious offence were held incompetent.

As far as other convictions are concerned, according to their degree of seriousness, the presumption is that a man whose character has led him to reprehensible acts in the community and before the law, is no doubt less propt to upright acts than a witness who has never had trouble with the law up to then.

But particular acts generally must not be mentioned, for three main reasons :

If suspicion was felt by testifying witnesses towards the evidence they give, they undoubtedly would no longer be willing to testify, and moreover, truth would suffer great damage from reticent evidence.

Also, it is not the witness who is on trial. The aim of divulging convictions is not to show that his testimony is mendacious. The aim is to guard the accused against unjust conviction, and it must be proved beyong doubt that the evidence of the witness is reliable.

One might think that in practice it amounts to the same thing, but it does not, because this provision of the law proceeds from a different spirit.

Lastly, these convictions are merely collateral, and past trials are not to be judged again.

Consequently, the witness will not be allowed to show the circumstances of his convictions, and that he was wrongfully convicted, in order to re-establish himself in the eyes of the jury.

Obviously excess of speed on the road cannot and will not go against the probability that the witness is speaking the truth in the jury’s opinion.

The amount of credibility that can be granted to the testifying witness will be weighted by the jury only. Yet, since any conviction can be received, it is not required that it should be relevant to the issue of the trial for the witness to be forced to answer although the nature of the crime may be without similar proportion to the earlier offence; that is to say that in a trail for assault, a record of theft or petty larceny, can be displayed.

Nevertheless, the judge has the power to disallow any question which is prejudicial to a witness, as when being framed in such a way as to make it clear to the jury that he cannot be believed on his oath in the trial in question, because he has once been guilty of theft, for example, although it could be inferred that a thief is more propt than an honest man to mask the truth.

Cross-examination of witnesses about past convictions can be widened into evidence of character, convering then not only the disposition of the witness to act according to certain good or bad reflexes of behaviour, but also his reputation in the community.

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f) Bad character

Undoubtedly, facts, which at cross-examination do not reveal themselves exactly as they were alleged, indeed cast a doubt upon the personality of the witness.

To question certain claimed facts is the simplest and most rational manner.

Nevertheless, understanding of reported events sometimes resists analysis, everything is coherent, inattackable. The offensive is then no longer directed at the alleged facts, but at the very personality of the witness whose reputation and honesty are put in doubt.

For example, petty examples of dishonesty which have not resulted in conviction will not be stated, but it can be made clear that the witness has a general reputation of dishonesty in the neighbourhood or within the community where he lives. Is he a known liar? Is he someone to be relied upon?

Whatever it may be, this exploration of a reputation goes to the credit of the witness.

In R. v. Richardson and Longman92, the defence called a near neighbour to have him tell whether the prosecution witness could be believed on her oath or not, after the credibility that might have been given to the latter’s personality had been pressed hard.

The gradual unfolding of the trial is interesting, for it shows up to what point a witness can be attacked, though the judge has discretion to disallow prejudicial evidence in criminal trials.

The defence sought to impeach the accused’s former mistress, now charging him with quite damming allegations.

Longman and Richardson were tried for conspiracy to prevent the course of justice.

The existence of conspiracy depended on the evidence of Longman’s lover who gave the show away to Scotland Yard : alone in a car, in front of Richardson’s house where Longman had entered, she saw coming out the man Longman and she had once taken to Richardson’s, the man who had, according to Longman, « just done ten years for safe blowing »93. Nothing apparently showed that she was going to be injured but « she became terrified that she was going to be hurt ».94

Mrs C. was « strongly attacked, not only as an unreliable witness in the ordinary sense but as a person suffering from hallucinations.

92 R. v. Richardson and Longman (1969) 1 Q.B. 299.

93 R. v. Richardson and Longman (1969), 1 Q.B., 763.

94 Ibid., Edmund Davies, L.J., p.763.

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« It was said that she had spells of drunkenness when her imagination ran riot and she entertained entirely groundless fears. She was said to be a prostitute and a deliberate perjurer, and her whole history and backgroung, as well as her relationship with the appellant Longman was investigated. »95. In spite of all, she went on saying that Longman terrified her and she « had repeatedly tried to get away from him ».95b

Two witnesses were then called to contradict her and say that she seemed perfectly happy with Longman, and then a Doctor H., who lived exactly above Mrs C., was called to testify concerning Mrs C.’s reputation for veracity.

The following sentences are the transcript of what was said :

Counsel : Are you aware, Doctor, of the her reputation for veracity?

Dr H. : In a general way, yes.

Counsel : Would you believe the lady on her oath?

O’Connor, J. : Now think carefully before you answer the question. You are on your oath. Do you understand the question which counsel had put to you?

Dr H. : I do indeed, my lord.

O’Connor, J. : Yes?

Dr H. : I would say that in certain particulars she could be believed on her oath. O’Connor, J. : Yes, that is enough.

Counsel : With your lordship’s permission – O’Connor, J. : Certainly not. You have got your answer from the witness.

Counsel : The witness has said that certain conditions might be applied to her oath.

O’Connor, J. : You are not allowed to enquire into conditions. I have ruled on it and I am not going to permit it.

Counsel : On my respectful submission, the witness should be permitted by your lordship to finish the answer to the question which he has given.

(then the learned judged interrupted) : He has answered that question. You cannot put it again.96

95 Ibid., Edmund Davies, L.J., p.764.

96 R. v. Richardson and Longman, p.

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Dr H. could be asked whether he was aware of the general reputation of Mrs C’s good character or untruthfulness, and whether from this general reputation, he could believe her on oath or not.

The court seeks to know if, from people acquainted with the witness, he is creditworthy or not. But this character witness must not mention the reasons for his opinion, for it is not the matter in issue, and also because it would be a judgement from the witness.

The judge quickly stopped Dr H. so as not to let him add what his personal reasons were.

This case was made the object of an appeal because the defence calling Dr H. complained that the judge had not let the witness qualify the form of his answer.

Another complaint was raised by counsel. The judge had not permitted Dr H. to be asked whether, « from his personal knowledge of Mrs C., he would believe her on oath »97, and the Court of Appeal held that the trial judge had wrongly dismissed it, forbidding then any ensuing cross-examination as to his personal reasons for so saying. Verification was made that in any event, no miscarriage of justice could have occurred and counsel said he wanted to « establish in his proof » the following statement : « If she (Mrs C.) were under pressure or frightened or bore some hostility towards someone, she would be capable of telling lies on oath. I would not say she would always be, and in my opinion it would depend on the circumstances »98, which again would not have been admissible, apart from the fact that it would no doubt have been of no help to the jury.

Mrs C.’s credit as to veracity had been demolished, the prosecution could in turn have called a third witness, to show that she was worthy of credit, or by « recrimination »97b show that this third witness could not possibly be believed.

In R. v. Wood99, the prosecutor was not allowed to give evidence of his good reputation for decency. He brought an action for robbery and violence and during cross-examination, the defendant asked him whether he made indecent approaches to him.

The prosecution wanted to rebut this evidence through a character witness, and the defence objected to such admissibility because it could only lead the jury to being biased in his favour against the defendant, since an eventual isolated act of indecency was « consistent with his being of good general reputation « 100. In criminal law, the prosecution’s character generally cannot be proved, except in cases of rape, where cross-examination as to impeaching his whole credit is permitted, because it bears directly on the accused’s innocence; therefore another witness can be called to contradict the prosecutrix’s denial that she is a prostitute.

97 R. v. Richardson and Longman (1969), 1 Q.B., p.766.

98 Ibid., p.766.

97b Elliott, L.L.B., A Manual of the Law of Evidence, London, Sweet & Maxwell, 1980, 11th ed.

99 R. v. Wood (1951), 2 All E.R., 112.

100 Ibid., p 112.

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In R. v. Wood, the prosecution sought to draw analogy with cases of rape when the accused alleges consent and the general reputation of the woman has been studied to show that the prosecution is a woman of notoriously bad character « for want of chastity or common decency ».101

Therefore, evidence about the witness’ character in cross-examination generally goes to their credit.

It goes to the issue of the case when it may exculpate the defendant, that is to say, when it has direct relevance to the complainant’s truthfulness.

But this is sometimes not easy to determine, and it is the judge who has the disctretion to allow an investigation of the sexual behaviour of the complainant with persons other than the defendant, in cross-examination.

He will give leave « if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked ».102

In R. v. Lawrence and Another103, the judge decided that fairness ought to be decided from the judge taking the view that « it is more likely than not that the particular… line of cross-examination…might reasonably lead the jury… to take a different view of his evidence ».

Character witness in cross-examination are tested as to their means of knowledge about a witness’general reputation, and the reasons for the extent to which they « regard it as tainted »104, so that the jury may judge whether the witness is to be believed on his oath or not. Evidence of character witness can be contradicted after they have been cross-examined when their testimonies are material and relevant to the issue of the case.

Though infringing the hearsay rule, examination and cross-examination about a witness’ character is untouchable because of deep-seated ancient customs : one has to be reminded that formerly the jury was composed of witnesses who at the beginning were a body of neighbours who gave their testimonies on oath about facts of which they had personal knowledge.

Then at the time of Henri II, the county Sheriff chose four men of the township who in turn elected twelve men, or « recognitores », in the county.

Accusation could not be made without the testimony of the neighbours – being themselves of good reputation : « nullus decanus aliquam personam accusaret sine

101 R. v. Greatbanks (1959), Crim. L.R., 450, headnote.

102 Sexual Offences (Amendment) Act, 1976, S2.

103 R. v. Lawrence and Another (1977), Cr. L.R., 492.

104 Thayer, J.B, A selection of cases on evidence at the Common Law, Cambridge, Charles W. Sever & Co, 1900, p.1240.

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testimonio vicinorum circummaneutium qui bonaevitae fama laudabiles haberentur ».104b

These recognitores made an inquiry or « recognition » in the county, under the oath that they would say the whole truth, and they presented all people who had a bad reputation to the justice, so that they could be submitted to the ordeal. Later the evidence of the jury of presentment105 was to be examined and contested by a small jury.

So, witnesses can be cross-examined by the opposing party as to what they say and the manner in which they give evidence, as much as to their fairness and also character through evidence of disposition and general reputation; testimonies are subject to rules construed to counteract distortion and fabrication, as well as to respect the personality of the witness and avoid unending trials.

The reliability that can be credited to a witness’testimony as regards his physical or mental condition can also be stated by other witnesses, though it does not necessarily affect his credibility.

g) Evidence of physical or mental condition tending to unreliability

The truthfulness of a witness’ statement may be contested by the calling of an opponent witness to give evidence that the former’s physical or mental condition is or was such at the time of the event that it was unlikely that he was telling the truth when giving account of the event.

The contradicting witness may testify upon oath that the witness has bad hearing and that his understanding of his having heard of an attempt of subordination may have been distorted, although he is not medically classed as a deaf witness.

Expert evidence is admissible to prove that a witness suffers from some defect of the mind (disease, abnormality) affecting the reliability of his testimony. Then medical evidence must include « the extent to which the credibility of the witness is affected ».106

Up to 1964, there had been limits on the evidence given by medical expert witnesses, so that they might not infringe the rule that it is up to the jury to be the judges of the facts, a task in which they can be assisted by specialised knowledge, but in no way directed by expert opinions. English people have always had very great consideration for skilful men whose former role was to assist the court in reasoning, and then the court instructed the jury; whereas witness’duty was only to swear to what they had « seen and heard ».

Then experts came to be regarded as witnesses. In his summingup, the judge recapitulates their testimonies, but after they have given evidence directly to the jury.

104b Stubbs, W., Histoire Constitutionnelle de l’Angleterre, French ed. by Ch. V. Giard and E. Brière, Paris, 1907, p.559.

105 Ibid., p 738.

106 Lord Pearce in Toohey v. Metropolitan Police Commissioner (1965), All E.R., p.512.

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Their evidence must in no way be binding upon the jury who are expected to make the proper inferences.

Thayer gives an American example which explains clearly the English rule. Before 1900, in United States v. McGlue107, the accused was charged with murder and he pleaded delirium tremens at the time he hit his fellow. Judge Curtis ruled that the eminet physicians who had been called on both sides, « were not allowed to give their opinions upon the case; because the case, in point of fact, on which anyone might give his opinion, might not be the case which you (the jury), upon evidence, would find… It is not the province of an expert to show inferences of fact from the evidence, but simply to declare his opinion upon a known or hypothetical state of fact; and, therefore, the counsel in each side have put to the physicians such states of fact as they deem warranted by the evidence, and have taken their opinions thereon.

« If you consider that any of these states of fact put to the physicians are proved, then the opinions thereon are admissible evidence, to be weighed by you. Otherwise, their opinions are not applicable to this case. »108

But physicians « are believed to be better able to form a correct opinion… But they are not binding on you (the jury), against your own judgement but should be weighed, and, especially where they differ, compared by you, and such effect allowed to them as you think right »109.

Inference from opinion evidence to guilt or innocence was not permitted. Experts’ opinions were admissible just in so far as they applied their learned skill to give a safer possibility of understanding of events, but did not involve themselves personally through their opinions of the matter in hand.

In R. v. Gunewarden110, Dr Gunewardene was charged as a principal in the second degree, with the death of a woman, caused by abortion.

His colleague, who had performed the operation, gave evidence against him, as well as this colleague’s brother, who put forward that Dr Gunewardene had brided his sister to have her withdraw her evidence.

In the course of cross-examination, this brother admitted that he had lied at different times, and Dr Gunewardene wanted to call a doctor to show his unreliability as a witness, which was objected to by the prosecution. In effect, counsel for the defence wanted to carry these lies on the same level as his « reputation for truthfulness and veracity »111, with the medical expert « proving whether or not he is (was) suffering from a particular mental state,… what that mental state is (was), and the question whether

107 United States v. McGlue (1851), I Curtis 1, p 675.

108 Ibid., p 675.

109 United States v. McGlue (1851), I Curtis 1, p 676.

110 R. v. Gunewardene (1951), p.

111 Ibid., p 282.

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his evidence is (was) to be rejected thereafter is (was) a matter of inference for the jury ».112

This evidence was held by judge Hilbery to be inadmissible, because the medical witness could not state in chief the particular facts on which he based his opinion.

The most that he could have asked him was : « From your knowledge of the witness Davies, would you believe him on his oath? »113

Relying on R. v. Gunewardene, it has been ruled in Toohey v. M.P.C., that the doctor could say nothing « by way of medical opinion as to the boy’s condition other than what he actually saw », and that he could not give « a medical opinion but … such facts as anybody could have ascertained by looking at him ».114 In this case, three men were accused by a seventeen years old boy of assaulting him with intent to rob him. The former pleaded however that they were in fact helping the boy to go back home whilst he was in a state of hysteria exacerbated by drink.

The police surgeon attested that he had seen no trace of injury on the boy who smelt of alcohol, and behaved in an « hysterical state », « was unable to reply sensibly to any question » and at the end of the examination « just flopped down on the floor » in « a typically hysterical fall ».115

The main prosecution evidence was that of the boy.

Two trials took place for the jury who could not reach the necessary majority. In the course of the second one, the question of admissibility was raised between the judge and defence counsel before the doctor gave evidence, because in the collected notes of the trials he had read that the doctor had inferred instability from that hysterical attack, though it had not been objected to.

There was no possible impeachment of the boy giving evidence because of his general mental condition.

Direct personal evidence of expert witnesses could not entail analysis of the boy’s mental condition as a whole, conferring on this boy the status of unreliable witness. If some rules of evidence exclude certain relevant facts, it is to obtain the best possible evidence for the facts in question cannot be properly proved by certain methods. Hence one will always beware, from a fact, of inferring some general conclusion that would seek to corroborate the matter in question : tautology is no qualified mode of reasoning.

112 Ibid., p.

113 Ibid., p 294.

114 Toohey v. Metropolitan Police Commissioner (1965), All E.R., p 509.

115 Ibid., p 508.

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Nevertheless, excluded evidence because of improper grounds can be permitted
through another form : though here we are going beyong criticisms because the expert
was to give evidence in his capacity as expert only.

« It was held that the most that the doctor could have been asked on oath was : « From
your knowledge of the witness… would you believe him on his oath? »116 which might
weigh as much as medical conclusion in the jury’s mind, and then the doctor in cross-
examination would have been asked about his personal opinions, where from he might
have underlined the impossibility of relying on the witness for the prosecution. But « if it
was not amplified by questions in cross-examination (from which opposing counsel
might well refrain), it (the evidence which the doctor could given) would be liable to be
robbed of its proper effect » and seem « mysterious or meaningless to the jury ».117

We were very surprised to read in R. v. Gunewardene, to quote but an example, that
counsel for the defence intended to rank evidence of the mental condition of the
witness for the prosecution in the category of evidence of character.

The whole reasoning of the case then became founded on that class of evidence
which as we previously said, means both reputation and disposition to act in such a
manner.

From this confusion resulted numerous mistakes that certainly resulted in miscarriage
of justice, since medical expertise in fact was deprived of most of its value, with such a
confusion of moral behaviour with disease, as we later read it through Lord Pearce’
words in Toohey v. Metropolitan Police Commissioner.118

With the proper categorization of different types of evidence, with the leading role of
psychiatry and sometimes a better knowledge of mental diseases, witness’ reliability
became technically examined.

Toohey v. M.P.C. on Appeal is interesting, for it shows how in the course of time, the
analysis of evidence lies on knowledge given by experience, meanwhile it has
sharpened itself through handling of modern learning, conveying a more complete
picture, therefore no doubt safer testimonies.

In effect, merely relying on the preceding case of Gunewarden would have resulted in
injustice for the appellant Toohey who was condemned to two years’ imprisonment
without having been allowed to show that the prosecution was normally subject to
hysteria.

The prosecution said the distressed state of the boy and the appearance of hysteria
were the result of the shock caused by fear of the three men assaulting him.

116 R. v. Gunewardene, (1951), 2 All E.R., p.295.
117 Toohey v. Metropolitan Police Commissioner, (1965), 1 All E.R., p.510.
118 Toohey v. M.P.C. (1965), 1 All E.R., p.510.

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The defence said that all this was « figment »119 of imagination. The boy was rather
exuberant, seemingly under the influence of alcohol and, as we said earlier, they had
wanted to help him go back home since he appeared incapable of doing so alone.
The further evidence was that the accused had to relieve himself and they all went
down to the alleyway when suddenly the boy « bumped into him (the accused) from
behind, banged himself against a wall, and became hysterical, saying that someone
had hit him and that they (the accused and the co-accused) were after his money.
They held his arm and took him up the alleyway to calm him down and get him
home »120 and police officers found him in this distressed condition, with the three men
around him.

The expert was not allowed to account for this change in the boy’s demeanour, which
is what he had been called for by the defence. He was not allowed either to establish
whether the alleged assault accounted for the allegation of assault, because the court
felt bound by R. v. Gunewardene and other cases.

« Counsel for the defence had wished to call Dr Leigh to say that he… had examined
the witness and had come to the conclusion that the man was suffering from a disease
of the mind, and that, therefore, he regarded his testimony as unreliable. In our
opinion, that is exactly what the cases show cannot be done ».121

The observation of an hysterical state is one thing,but since the fact at issue was the
cause of this loss of control, the House of Lords allowed appeal and the further
evidence of expert witnesses, as to what the usual state of the plaintiff was, from the
way he had behaved in this event.

The closing words of Lord Pearce were : « Such (medical) evidence is not confined to a
general opinion of the unreliability of the witness, but way give all the matter to show
not only the foundation and reasons for the diagnosis but also the extent to which the
credibility of the witness is affected. »122

On this occasion medical expertise was indispensable.

Through cross-examination and common sense, the jury is given some capacity to see
clearly.

But it is in the interest of justice that « vital hidden fact »123 and mental deficiencies
should be revealed.

From this decision may arise « perfect » testimony, sound and objective, that is to say
testimony whose aim is truth. Now, expert’ evidence may be just a voincing of any
witness’ testimony, a practice which has been developing in France, for example, to

119 (118) Ibid., p 510.
120 Ibid., p 506.
121 Toohey v. M.P.C. (1965), 1 All E.R., p 510.
122 Ibid., p 512.
123 Ibid., p 512.

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make an indispensible comparison between France and England which illustrates the
well-foundedness and necessity of a procedure of examination of testimonies.

« The evolution of present societies towards an exclusive materialism is beginning,
alas, to bearfruit. The renunciation of feelings of love and humanity for the sole
concentration on the results of the end at all costs, without any care of what is fair or
unfair, nor of others, the suffering victims, entails wickedness and a special cruelty
linked with the cynical and merciless quest of self-interest. »

The current evolution of some divorces illustrates these remarks. We have principally
noticed a certain number of cases in which the woman gets married only to have a
child, with the husband considered but as an instrument to achieve this aim.

This is why once the child has been born, such women have no other aim than to get
rid of their husbands, and keep the child for themselves exclusively, without even
allowing the father to see him after the divorce procedure.124

In order to obtain divorce, many striking testimonies are now given in court by medical
experts who base them merely on files, relying on the evidence of a colleague,
whether an expert or not, himself often influenced and convinced by the wife or
husband’s allegations of the spouse’s mental disturbance.

Professor Baruk told us of one of many experts’ reports on proceedings attesting to the
« hullucinatory paranoia » of an overworked husband, kept by force in a mental
institution for five years, « on mere psychiatric interpretation originating from the
declarations of his wife, in connection with his firm’s doctor ».

What sort of black misdeeds can such specialists then infer from these alleged
patients?

In the category of witnesses, experts are to be considered apart, for in fact they are the
only persons who, when making an expertise, are allowed to bring their testimonies
even though they do not have direct knowledge of what happened. A part of what they
say will be taken from books and learnig, and it is thus that psycho-analysts and
psychiatrists will build their diagnosis in the light of Freudian or Mendelsohnian
theories : a victim of malpractice was disturbed with such a guilt complex that she
would automatically provoke others’ aggressivity. Such a thief has been set on revolt
against his authoritarian father. He had to work it off through robbery, so as not to
become a dangerous criminal.

It is not so difficult to realise how such ideologies can be praised, eagerly accepted
and traded upon by counsels who want to streng then their cases.

124 Baruk, H., Des calomnies et de l’Usage Abusif de la Psychiatrie dans Certains Divorces. Nécessité

de l’Examen et de la Critique des Témoignages, Communication à la Société Moreau de Tours,
19 mai 1985.

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In our wold where anyone who wants to succeed socially must be specialised, many
have a lack of general culture.

In the case of some medical experts, the information is so much based on intellectual
and literary theory – we mean speculation – that it becomes mere doctrine, without in
the least being influenced by real life.

At the time of writing, a doctor assures us and maintains that there exist things the
influence of which we cannot fight against, as for example « the inducement of the full
moon if we are predisposed to becoming a murderer ». Meeting our incredulity this
doctor peremptorily asserts that this is a « matter of chromosomes ».

Whether one can brush aside scientific information, or not, one feels ill-at-ease for two
reasons…

Doctor X, whom we interviewed in Barnett Hospital, outside London, told us that « there
is a list of Crown psychiatrists who work only for the prosecution and do assessments ».
When they do not testify personally, it is up to the barristers to produce, or not, the
reports according to whether or not they want to strengthen their cases. « There is
inevitably a bit of a challenge to see whether you can support the case your employer
entrusts you with » but according to this psychiatrist, it cannot be said that the end
justifies the means and medical evidence is not put forward as the main evidence.

If the court or the jury have to be « properly equipped to make the proper inferences »125,
we also understand the wisdom of England up to the 1960’s, forbidding any other
opinion than what the expert « actually saw », thus preventing any substitution of experts’
judgement to trial by jury.

Since 1965, expert’s evidence has been enlarged, but it is liable to be cross examined
by the adverse party which in turn can oppose other experts when a man claims that if
he acted so it is because his mental responsibility was impaired at the time, he first of
all had to lay and to prove « a factual basis »126 upon which experts will express medical
opinion.

« It was the duty of the prosecution to probe the question whether the prisoner’s beliefs
were due to a delusion or not, and to scrutinize the medical reports closely to see how
much of them consisted of purely medical evidence »127. In this case, (R. v. Bathurst)
they did not, and « relied on hearsay evidence given by the doctors ».128

The prosecution cross-examined psychiatrist called for the defence, suggesting to
them that what they spoke was only what the prisoner himself had said.

125 Cross, Sir R., Cross on Evidence, p.442.
126 R. v. Bathurst (1968), 2 Q.B.D., 99.
127 Ibid., p.105.
128 Ibid., p.102.

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We are there confronted with absolutely crucial facts : how is the court to reconcile
necessity that experts should not give their opinions as to ultimate issues – in Toohey
case the impeachment of the prosecution’s testimony along with giving the possibility
for the jury to draw the right inferences – when medical technical knowledge alone can
explain facts? The new judge knew what the data were, which part of the medical
evidence had had not been allowed and why, and that all elements went to prove the
question of the competency of the prosecution. A person suffering from hysteria is only
partially disabled, and as such should not be rendered incompetent. This question had
to be decided on the voir dire by the new judge.

Diminished responsibility is not synonymous with irresponsibility, but alcohol may put
someone out of his own mind when it provokes a crisis. But the new trial no doubt
permitted the birth of new and adequate rules of enlarged scope.

In Lowrey v. R.129, two men were charged with the murder of a fifteen-year-old hitch-
hiker. The crime was apparently a free one, which originated in both of these men, as
they later said, wanting to see what it was like to kill a chicken!

Each of these men tried to fix the blame on the other, but in both there was evidence at
least of aiding and abetting.

One pleaded irresponsibility and madness due to the taking of drugs that had
« stoned »130 him, necessarily excluding any participation in the crime.

The other denied his responsibility in chief but showed his participation in the killing.

Later, the latter justified his self-incriminating statements by the fact that his mate had
ordered him, if police suspicions seemed to bear more on him to say that he had given
his help in this massacre, that they had first intended to kill a chicken. Now, « he
complied with K.’s directions because of threats made by K. to him and to his wife to
do them injury ».131

Several experts were called as witnesses, of whom one psychiatrist on behalf of K.,
and a psychiatrist as a court expert for L..

Both experts made assessments of these two men’s personalities with the aid of tests.

In these inextricable happenings each of the accused put forward, expert evidence
was admitted by the judge to form an opinion of the probabilities according to which
one would have been likely to dominate, or the other to have been submissive.

Each of the experts was carefully cross-examined as to their qualifications and
experience.

129 Lowrey v. R. (1973), 3 All E.R., 662.
130 Ibid., p.667.
131 Lowrey v. R. (1973), p.666.

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The difficulty was to select the traits showing « which account of the killing was the
more probable and that the witness should not go into any account which related to
tendecies such as tendencies to lying or fraud or deceit or the like ».132

Expert evidence had to avoid making a decision of the guilt in principal of one or the
other of the two men, a final issue to be decided by the jury.

We are coming close however to realise how tenuous is the margin of decision which
is left in practice to the jury : when, in order to be able to see clearly through a great
amount of information, the necessary elements are given by expert witnesses in the
matter, whose twenty or thirty years of experience cannot be disregarded to what
extent are a jury able to consider such opinion apart, to be looked on a mere data and
taken into consideration in a general synthesis?

Both sides said the other had had the idea of the killing of a chicken.

Both said they had been powerless to stop the criminal act of the other, one on
account of his lack of physical strength faced with a drugged person, and the other
because he had been « stoned » by drugs and beer.

The tests showed evidence of personality disorders for the one, with aggressiveness,
basic impulsiveness, little control and callousness, even sadism, apart from low
intelligence.

As for the other, his intelligence was fairly bright and he was not found to be a callous
man, but though in a lesser degree, he was also impulsive and aggressive with strong
difficulties in relating adequately to others. The general personality he was endowed
with was so « immature »133, so weak that he seemed « likely to be led, and dominated by
more aggressive or dominant men and… conceivably could act out or could behave
aggressively to comply with the wishes or the demands or orders of another
person »134, which was coherent with the accused’s stating that he had been intimidated
and frightened by his friend.

The expert’s opinion was necessary to show that the version of the facts that K. had
put forward was more probable than that given by L. And this was indispensable to the
course of justice. The report of the case says it does not know to what extent expert
evidence had been useful for the jury. No doubt it had had an influence, for de facto, it
bore directly upon one of the main issues of the trial.

In Director of Public Prosecutions v. A. and B.C. Chewing Gum Ltd.135, the Company
offered as publicity, in order to increase the sale of its chewing gum, cards of an

132 Ibid., p.670.
133 Lowrey v. R. (1973), p 669.
134 Ibid., p 669.
135 D.P.P. v. A. & B.C. Chewing Gum Ltd. (1967), A.E.R., p.504.

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obscene character. They were charged because of the depravation and corruption that
their possession and reading would entail with children.

The final issue was thus broken down :

1. What could be the likely effect of these cards on children;

What would their contemplating these cards lead them to do?

2. Would what they may be led to do bear the seal of depravation?

Though expert evidence was to answer only the first part of the question, this would
implicitely cover the second part. This case is also interesting for it is very significant
as far as the role of the expert is concerned in modern-day life. The judge ruled that
« when considering the effect of something on an adult, an adult jury may be able to
judge just as well as an adult witness called on the point… but certainly when dealing
with children of different age groups and children from five upwards, any jury and any
justice need all the help they can get ».136

Technicians become the measure of many things. The application of technicity as
judge of moral values shows that these values are no longer the source of a society’s
inspiration.

Obviously cross-examination must be difted still more when the expert who is testifying
belongs to the category of those who have specialised in the prosecution.

In R. v. Lanfear137, the Court of Appeal declared that medical expert evidence, whether
it is allowed by police surgeons or « independent » doctors, is « professional evidence »138
: there is no such consideration as medical referee « acting as the hand of the
police »139, thus as the appellant complained, capable of an « inducement »140 towards
the accused when he explained to him that « it might be in his own interest to allow the
doctor to examine him » even if he was prosecuted as a result.

According to the expert psychiatrist we met in Barnett Hospital, expert evidence is
strougly sifted and questioned in court, and even encouraged, with the good
techniques of certain barristers who « pick up loopholes » and defects of logic, as they
would for any other specialist.

Freud and Mendelsohn are praised by English psycho-analysts, but English courts
very rarely resort to them, « preferring experts who will offer treatment » to experts who
will just explain things.

136 D.P.P. v. A. & B.C. Chewing Gum Ltd. (1967), 2 All E.R., p.506.
137 R. v. Lanfear (1968), C.A. 2 Q.B.D., p.77.
138 Ibid., p. 87.
139 Ibid., p. 87.
140 Ibid., p. 80.

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There are very rare cases of divorce proceedings which rest on the spouse’s alleged
mental illness; once this psychiatrist attended such a trial where she witnessed the
judge being very angry with a doctor rering to the wife’s mental illness.

Of course, experts are to be found in many fields. Expert opinion in handwriting,
though considered as able to give scientific and qua so reliable evidence – in Dass v.
Masih141, the judge sent the substantial support of the trial, a letter with a denounced
forged addendum, to the forensic laboratory in Cardiff and then another expert’s advice
was asked by the appellant – still needs direct cross-examination to be convincing : « It
is here that this report of Mr Puri is extremely detailed, and he gives all the reasons
why he has come to the conclusion at which he has arrived. There are many cases,
however, in which handwriting experts do just that when they are in the witness box
and yet the court is unable to accept their opinion. »

Although the jury is the real judge of the facts, « the judge can put questions to
witnesses if he thinks cross-examination was badly done »142. We noticed this in
London’s Central Criminal Court, where a young counsel had to prove himsef.

The Court can also call witnesses.

4. Right of the Court to call other witnesses. Last minute evidence

This incontestable power acts only in criminal trials.

In effect, the Court is obliged to ask for consent in civil cases.

In any case however, it must call the witness before the case is closed, that is to say at
any stage of the examination or cross-examination.

There is an exception « when (the party) has been taken by surprise in the course of his
opponent’s conduct of the case ».143

The case of R. v. Cleghorn144 is striking as an example of the Court of Appeal
quashing the conviction of the appellant because the Court prosecuting witness was
designed for the close of counsel’s case right at the opning of the trial.

An au-pair girl in England with her friend, went out to a club. They met two men. T. and
his companion went to T.’s apartment, each girl finishing up with one of the two men.
The au-pair girl complained of having been raped by T. Neither defence nor cross-
examination showed they would call the accused’s friend, Geoff, a vital witness
certainly for the prosecution.

141 Dass v. Masih (1968), 2 ALL E.R., 226.
142 A London solicitor.
143 Evidence, Vol 17, Para 281, p.195.
144 R. v. Cleghorn (1967), I All E.R., p 996.

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Judge Clarke said : « I shall wait with interest to see what evidence the defence call and
whether Geoff is called, but if, at the end of the case for the prosecution and the
defence, Geoff is not called by either side, I shall have to consider whether I, as the
judge presiding over this court, should not exercise my undoubted right to have Geoff
in the witness box. »145

Therefore, if the prosecution is not able to call its witness, the court will sometimes
invite them to do so, and « if they refuse there is the ultimate sanction in the judge
himself calling that witness ».146

When in a case such as this however, where the witness is called only at the end of
the defendant’s case, the rule should come into effect « where no injustice or prejudice
could be caused to a defendant »147 : the ensuing rule of practice is that « in general it
should only be done where some matter does arise exproviso which no human
ingenuity can foresee ».148

What happened in R. v. Cleghorn is that the alleged rapist was convicted through the
calling of another prosecuting witness by the court, though it had allowed cross-
examination of its witness by both parties, the calling again of the accused and of two
further defence witnesses.

Therefore, the accused might have been convicted in any event. But each case
depending on its facts, there was nothing in the circumstances which permitted
divergence from the general rule that prosecuting evidence must not be called after the
defence has closed its case.

The judge must not exercise his discretion in a way that would overrule the discretion
of the counsels.

It is up to counsels to prepare their case with whatever evidence they want.

We must always bear in mind there is no public accusator in England, and if
arguments must be disputed in full, the fair rule through the centuries long procedure
of the examination of testimonies when the liberty of the subject is at stake149, has it
that there should not be something resembling a third inquisitorial party in the person
of the judge, with a no-limit discretion in directing the jury to convict an accused
through the calling of a witness when the case for the prosecution is closed.

On the contrary, in Richard Doran150, new prosecuting evidence was accepted after
the case for the prosecution had been closed, and after two defence witnesses had
testified.

145 Ibid., p.997.
146 Ibid., p.996.
147 Ibid., p.997.
148 Ibid., p.998. Rule in Criminal Law, Evidence and Procedure, Vol. II, para 294, p. 171.
149 R. v. Cleghorn (1967), I All E.R., p.997.
150 R. v. Richard Doran, (1972) Cr App Rep, 429.

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Richard Doran was a complex and complicated case. The accused cunningly
endeavoured to get out of the offence of handling stolen handbags, by claiming that he
was the victim of a wicked machination on the part of J., a former employee of his and
now co-accused, who was the true person responsible.

Doran put various statements to the police, which came to contradict the ones he
made in court.

The examination of testimonies principally was based on a £300 sum that the accused
said he had paid for the handbags, and witnesses’ cross-examination showed different
destinations of the utilisation of this sum. This very sum, at the same time, and
according to the various witnesses, had been used to buy either bags or cosmetics or
to clear a stock waiting for the accused.

It had been paid by cheque but finally in cash, owing to external pressures.

The same evidence given by two witnesses was rendered impossible by two other
witnesses : the same persons were either traders and robbers, or money-lenders and
thieves.

No one knew where the bags came from, except the accused because he had bought
them. In fact, he did not know since he had been the victim of a machination.

The defence had called a young girl; she was not present in court, but her mother was,
because she wanted to explain the reason why her daughter could not be there. As
she « listened to the case, it dawned on her that she herself knew something about
it ».151

Then once more, a man whose existence was unknown to the prosecution, made an
application to give evidence.

The two new witnesses could prove that the accused had sought to sell each of them a
certain number of handbags of the same type as the ones which had been kept by
Doran, at the time of the theft.

These witnesses had not been « kept up the sleeve »152 nor « omitted »153 by the
prosecution and the Court of Appeal ruled the judge had rightly allowed their
testimonies, overruling the defence’s objection.

This case is very interesting because it shows how the Court’s mode of reasoning
goes along with moral principles : the law must be respected and followed up because
it has been conceived for justice’s sake. But what is important is not the law, it is
justice.

151 Ibid., p.438.
152 R. v. Richard Doran, (1972), Cr App Rep, Davies, L.J., p.437.
153 Ibid., p.439.

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One shall not try and interpret legality in order to have the case fit in with this legality.
English people are rather distrustful of rules which are too wide and general. Life is a
source of unforeseen events, as proved by this case.

Hence, if legality does not allow to call « fresh »154 evidence for the prosecution after the
latter has closed its case, but in exceptional events of rebutting character, it will not be
sought to find out which aspect of fresh evidence may appear as being of rebutting
character.

The sole and important problem is « whether it is right and proper to serve the ends of
justice that further Crown evidence should be permitted ».155 In R. v. Browne156 the
judge considered really last minute evidence. That is to say testimony was given in
court after the jury had retired to decide on their verdict.

He said that this was not possible : there is a time for each thing, « a stage for the
evidence of the prosecution,… a stage for the evidence of the defence, … a stage for
the summing-up but not for evidence to be called at the end of a case when all the
evidence available has been provided for the consideration of the Court ».157

Unless fairness commands it.

154 Ibid., p.429.
155 Ibid., p.436.
156 R. v. Browne (1943), 29 Cr. App. R., 106.
157 Ibid., p.111.

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B. The Accused as witness

1. Right to silence

An accused is not obliged to go into the witness box to make a sworn testimony. He
can choose to remain silent.

This right not to answer is a protection for the liberty of the accused against any too
strong power of a court of justice. Since 1898 he can no longer be imprisoned for
contempt of court because of refusal to give evidence; it is a protection against himself
indeed, for certainly he must be sometimes terribly temprted to commit perjury to
escape the public explosal of what he attempts to conceal from others and no doubt
from himself.

Obviously, the fact that he refuses to stand as a witness weighs diffently on the jury
according to whether the burden of proving the case is upon him or not, or even is
distributed.

If it is up to the prosecution to prove the facts, it is certainly more « natural » for the jury
that the accused should be represented.

It is more surprising that the accused should say nothing, when the burden is upon
him, even in a criminal case where insanity was the cause of manslaughter or murder,
as, for example, in R. v. Bathurst.1

However may be, counsel for the prosecution is not allowed to make an adverse
comment on it. The judge can help the jury to draw the proper inferences from
surrounding circumstances. Generally he just instructs the jury that it is a right of the
accused, and that they may not infer anything from such a decision, that would favour
an adverse interpretation of the facts.

We remember the judge in the trial involving Christie’s, the famous expert
commissaires-priseurs firm, using very simple terms to explain to the jury it was a
choice the accused had, and in nothing did it prejudge his guilt. Silence here cannot
mean corroboration of prosecuting evidence.

If the burden is upon the accused, the judge may say that he just « runs the risk of not
being able to prove his case ».2

The accused’s right of silence may also be seen as a privilege, since he then cannot
be submitted to cross-examination.

An accused is a competent witness for the defence at every stage of the proceedings,
whether in a joint trial or not. He can remain silent until the prosecution has proved its

1 R. v. Bathurst (1968), 2 Q.B., 99.
2 R. v. Bathurst (1968), 2 Q.B., 99.

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case. Yet, if he then says nothing, he meets the human inference that this silence
amounts to acquiescence.

He is not compelled to be a witness against himself – except for civil wrongs of non-
repair or nuisance to a highway or river. The exact truth may unfortunately remain
veiled, whatever the final issue of the trial.

If the chooses to testify, he can give his evidence in two ways.

Either he can give an unsworn statement from the dock.

Or he can be sworn and stand in the witness box.

2. Unsworn Statement

A defendant’s unsworn testimony is not really considered as evidence of the facts. It
does not carry with it the strength of persuasion, and the jury is given leave to attach to
it such weight as they think fit.

There is no cross-examination on an unsworn statement. The prosecution may
contradict him on this point only if the defendant emphasises his good character.

3. Loss of Privilege

If he chooses to testify and be sworn, he waives his privilege and can be cross-
examined as to any matter which is relevant and important to the issue : he must
speak the whole truth. From the 1898 Criminal Evidence Act, he also may suffer
searching cross-examination even if as a matter of fact he testifies only to exculpate a
co-accused.

But a sworn defendant cannot claim the privilege not to answer any incriminating
question. Thayer quotes the very far driven case of State v. Ober Supreme Judicial
Court of New Hampshire3 : A man was charged with keeping spirituous liquor for sale
and wanted to use his privilege to the very end, his privilege not to answer any
questions he thought would tend to criminate him. He agreed to answer only those
questions that might exculpate him, remaining mute for the others.

The court indeed decided that there was no answering and then using this privilege as
to dangerous questions for the establishment of his guilt.

The defendant’s behaviour was stressed and turned against him by the leave and then
the support of the court.

3 State v. Ober Supreme Judicial Court of New Hamppshire (1873), (Reported 52 NH 459), in A

Selection of Cases on Evidence at the Common Law, Thayer, Cambridge, Ch. W. Sever and Co,
1900, p.1123.

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This was in 1873 and such examples led to the 1898 Criminal Evidence Act.

4. Statutory Protection

The problem is how to ensure the reliability of what the accused says, and what
credit can be granted to him, knowing that it is still much more delicate than for any
other witness, that the jury should not be led into any hasty inference under the sway
of passion.

The chief rule is always the same : how must the procefure of examination and cross-
examination of his testimony be construed so that elements going to the issue of the
case should be separated from those going mainly to the credit of the accused, and
truth rise out of the case. Yet the defendant’s position is different to that of any other
ordinary witness who has no interest in the case.

Proviso (e) of S.l in the Criminal Evidence Act of 1898, stipulates that the accused’s
swearing entails the loss of his privilege not to answer any incriminating questions
concerning the one wherewith charged, and proviso (f) of S.l provides him with a shield
relating to his previous misconduct and protecting him from the disclosure of his
record.

« A person charged and called as witness in pursuance of this Act shall not be asked,
and if asked shall not be required to answer, any question tending to show that he has
committed or been convicted of or been charged with any offence other than that
wherewith he is then charged, or is of bad character, unless (i) the proof that he has
committed or been convicted of such other offence is admissible evidence to show that
he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by
his advocate asked questions of the witnesses for the prosecution with a view to
establish his own good character, or has given evidence of his own good character, or
the nature or conduct of the defence is such as to involve imputations on the character
of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence
against any other person charged in the same proceedings. »

5. Accused’s convictions

So that he should not be trapped between an eventual conviction for what he did and a
conviction for perjury if he lied, the accused is by statutory right protected from
disclosing his record that would unveil any previous conviction, or from being proved of
bad character by the prosecuting party.

An accused’s record cannot be revealed in order to verify what the accused is
declaring in court. This for three reasons :

– First, to save energy : in order to give proof, one must not assume, suppose or infer
in an anarchical manner.

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– Most of the time, the common herd resons by reversing the cause and its effect :
surely it is he who stole since he has already stolen. He is therefore of the type to
steal : I would not be surprised if it were he who was culprit.

– Secondly, because it is up to the prosecution to prove the accused’s guilt, and there
is no reason to charge him with more than that which he is no reason to charge him
with more than that which he is charged for at the time.

Accordingly, he will have to stand as a clear man before the jury; for there exist always
favourable elements in a man.

« Logic would admit the forbedden proof, but the necessity of avoiding prejudice is
stronger than logic. »4

– Thirdly, an accused may always have a change of heart.

In England, on principle, it will not be shown that a man has previously committed an
offence. Not de jure.

If common sense however requires there should not be such over-simple reasonings, it
is dangerous to act against all sense, in certain cases, when it is refused to evoke
similar antecedents : the guilty man must be as rigorously sanctioned as the innocent
man must be cleared.

Thus, only, and only on condiction that facts appear as not being due to chance, then
other similar acts may be raised.5

This, however, will still not be sufficient.

If someone charged with burglary is found in possession of a piece of celluloid and it is
discovered that he has already used celluloid to gain access to houses previously, it
will not be permissible to rely on this present fact to use the other offences to show that
the accused is now guilty.

One cannot use the fact that he has been once more in possession of a piece of
celluloid to assert it was he who committed the burglary. The act will have to bear the
features of the accused to raise an inference as to the question of his culpability.

So, even if he raped a young lady after he played the trick on her of the car breaking
down in a glade, and he has already committed other rapes, it will not be allowed to
take the other rapes into account. The reason being that there have been other men
who have resorted to this subterfuge.

4 Lord Simon de Glaisdale in D.P.P. v. Kilbourne (1973), A.G. 729, p.757.
5 S.1 (f) I Criminal Evidence Act, 1898.

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This could merely prove that he has a propensity to act so. The admissibility of similar
factual evidence must rest on a basis totally independent of the disposition to commit
theis offence. « They do not prove the accused’s guilt via his propensity; his propensity
is prove via his guilt. »6

In consequence, it is something more specific which is required to infer a probability of
guilt. In R. v. Smith7, a man was accused of the murder of his wife who was found
dead in her bath after she had taken out a life insurance on behalf of her husband.

The probable hypothesis raised by the defence was that she had had an epileptic fit,
this being the cause of death. The prosecution could prove otherwise, that it was the
third marriage of the accused, and the third time that the accused’s wife had been
found dead in her bath after having taken out a life insurance in favour of her husband,
who was alone with her in the house at the time of death.

Another case in which there is no external sign of offence but which shows the
accused acted in full conscience, having already elaborated a system, is that of R. v.
Rance.8

A man was charged with bribery. He had given money to one of the members of a
council (proof was brought that he had made out a cheque).

His defence was to say that he had in fact been cheated, and led to pay the money for
legitimate past services.

It was the third time that both the corrupt act and the same arguments had been put
forward by the defence. Professional business life does not allow foolishnell, and
Rance could not allege that he was ignorant of the real destination of his money.

The prosecution was allowed to show that there was no innocent intent in his actions.

Of course, the question is raised as to the number of cases needed to form a system :
are two cases sufficient? In R. v. Bond9 a doctor, who was accused of provoking
abortion on two girls who had been pregnant by his own care, pleaded accident. After
aprosecuting witness had sworn that he had told her « he had put dozens of girls ‘right' »,
it was said « that the same incident should repeatedly occur on the same person is
unusual, especially so when it confesses a benefit on him ».10

The present answer seems to be that for two cases to form a system, there must
already exist some proof of the accused’s guilt.

6 Hoffman, The South African Law of Evidence, 2nd ed., p.53, 2nd Ed., p 53, quoted by Cross, Sir R. in

Cross on Evidence, London, Butterworths, 5th ed., 1979, p.368.
7 R. v. Smith (1915), 11 Cr App Rep, 121.
8 R. v. Rance (1975), 6 Cr. App. R., 118.
9 R. v. Bond (1906), 2 K.B. 389, p
10 Ibid., p.420.

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The revelation of previous convictions or committal of offences, will thus depend on
their appropriateness to « show that he (the accused) is guilty of the offence wherewith
he is then charged ».11 The circumstances will be : showing technical conspiracy; to
rebut a defence of ignorance or mistake in transanction; homosexual perverseness…,
though there is no exhaustive classification of this, it is as difficult as it is dangerous to
draw up a list of categories of relevance from types of analogies, for circumstances in
life can never always be foreseen and morals have changed along with the times; so
the category of homosexual perverseness, for example, is becoming obsolete.

English law so attaches itself, as we may note, to the mind of the accused, to the intent
he had to commit the offence, that for strikingly similar factual evidence to be used by
the prosecution, it is not indispensable that the accused should have committed the
misdemeanour to its end.

In the case of R. v. Seaman12, a man charged with theft in a supermarket declared for
his defence that he had simply forgotten to pay.

This time happened to be the third theft of the same article, a pack of bacon.

The first time, the store-detective saw Seaman with it in the supermarket basket
whence it disappeared a few moments later; the second time, feeling watched, he put
it back, and the third time, he was caught with the bacon in the bag!

The prosecution was granted leave to adduce evidence of the two previous events.

For « similar fact evidence » to be positively probative, more than a question of the
degree of relevance.

There are two reasons for which this time-honoured rule has it that a man should not
be acused with another offence than the one on which he is already defending himself;

– The jury might give this (these) offence(s) more weight than it (they) deserves;

consequently they must forget the elements that are positive to the accused :
where similar fact evidence is admissible, the judge’s duty is to warn them that the
evocation of these previous convictions cannot corroborate the acts they are
judging :
– The English law provides that the accused may have changed heart.

There is no such logic as : all those who have previously stolenars virtual habitual
criminals : this man is charged with theft. He has been previously convicted for theft.
Consequently, one can presume he is guilty.

11 S.1 (f) I. Criminal Evidence Act, 1898.
12 R. v. Seaman (1978), 67 Cr. App. Rep., p.234.

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Going further into the subject, we see the profoundly human feature of this law which
does not lay down as a principle a priori that the individual, since he has committed a
fault is irremediable, but that in spite of this very fault, he may have mended his ways.
This general conception shows two things, if we may risk to enventure stating a
comparison that numerous persons feel :

1. In the French system, a person is, on principle, presumed to be innocent until the
contrary is proved.

The intent which goes along with the act is very important too.

The law embodies everything.

But the judgement will be grounded, all things considered, on the juror’s ultimate
conviction.

No rule of examination of testimonies warrants that truth has certainly been made out
and justice attained. (This is why one sometimes swings in opinion.)

Truth is left to the ability of counsels and to the acuteness of the judge’s conscience
and perspicacity.

In England the judge is present precisely to ensure that the procedure of examination
of evidence will be correctly followed through.

Everything is construed, doubtful though relevant evidence is excluded, similar events
to those of the accusation are added only if not knowing them would be injury to
common sense. Everything is in the respect of the accused.

2. In France, one is indicated in front of a public accusator who represents society,
which must be sheltered against the misdeeds of individuals, who can find themselves
beyond the pale.

Up to these days, someone who had been charged with theft and convicted of it, was
classified as a robber.

In England, the elements are seen in a different light : the stress is put on the
individual. This is fairest but more terrible in a sense, for his conscience is
differenciated, part of it is laid bare, which closely studies and questions the accused.

A particulary important question appears when the judge has to find a balance
between, on the one hand, a risk of prejudice for the accused, and on the other, the
limit beyond which the spirit of justice would be blemished : this happens when a man
is accused on several counts in the same proceedings, as in the leading case of the
Director of Public Prosecution v. Boardman.13

13 D.P.P. v. Boardman (1975), A.C. 421.

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Two witnesses, two school-boarders, complained before law of their headmaster
Boardman’s attempt at buggery and incitation to commit buggery.

The headmaster contended, in his defence, that it was a tissue of lies and invention. In
order to rebut the defence, the prosecution could show that there was an unlikelihood
of coincidence since the events the two boys described were darried out by Boardman
in the same strange manner : attempt or incitation to have the young man take the
initiative in the sexual act, and same circumstances as to the time and manner of
Boardman’s invitation.

In such a case, it is for the judge to decide whether he accepts that the different counts
should be judged separately or not. When the counts are so similar that they can
corroborate each other, the judge – as in this case – refuses to grant separate trials,
and leave is given to cross-examination of one count through the other(s).

Before he settles it however, he must assure himself that the witnesses did not agree
to plot and have an innocent condemned out of wickedness.

From the evidence he hears from the different witnesses before the trial and in the
absence of the jury, he must form an opinion, using his experience and habit of
observing men’s demeanour and listening to them.

In civil law in contrast, the accused may be cross-examined as to his previous
convictions as any ordinary witness : if he buys something of very great value for next
to nothing, cheating the seller into believving it is a mere copy and the latter sues him
for damages because of deception, the accused can be cross-examined as to any
fraud he may have exercised towards any person in the past, whatever the form of the
fraud.

His answer will be final and the prosecution will not be entitled to rebut it through
another testimony. But the jury will judge.

Therefore the accused, when he chooses to testify, can be cross-examined with
questions tending indirectly to criminate him by the mention of his previous convictions,
when it can be shown that he has repeated specific and similar offences.

R. v. Cokar14 is a strange case, which enlightens the formulation of this section. Cokar
got eighteen months imprisonment because he entered a house with intent to steal,
though he was found asleep, by the owner of the house, in an armchair, without having
touched anything.

Questions were asked about why he entered the house without being permitted, and
as to the intent he might have had with regards to the owner.

14 R. v. Cokar (1960) 2 All E.R., 175.

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In fact, such behaviour can be due as much to an unlawful purpose as to an alleged
innocent purpose.

The prosecution sought to show that such renewed behaviour could come from an
intention to act badly : Counsel suggested to the accused that he knew there was no
offence in English law that covered presence on or in the property of another person if
the intent was innocent.

Meeting the repeated answers of « I don’t know »15, the prosecution obtained leave to
rebt a defence of ignorance through cross-examination as to a previous charge : he
had been found in another person’s property for unlawful purpose before, and had
necessarily learnt then that finding oneself in someone else’s property with innocent
intent, was not an offence.

However, the Court of Appeal ruled that system might not have been proved, and
quashed the conviction.

Cokar had been charged and acquitted, and proviso (11)16 exludes the word
« charged », contrary to section 1, because one cannot use the fact that a man has been
acquitted to put him questions to him tending to incriminate him, either directly by
giving proof that there was no innocent intent, or even indirectly, to impugn his credit
from the jury by showing a bad disposition.

It would only raise irrelevant and biased suspicion in the jury’s mind.

If Cokar, however, had boasted in Court never to have been charged, even if
acquitted, the charge would have been stated in rebuttal, then weakening his credit.

In effect, the aims of the still in force 1898 Criminal Evidence Act were to define the
conditions permitting the cross-examination of the accused in order, on the one hand,
to establish the probability of his guilt, and on the other, to question his trustworthiness.

Or else the prosecution in their evidence, adduces that the accused already has such
conduct : « He had put dozens of girls right ».

Since the problem has been raised by the prosecution, there is no longer such a thing
in cross-examination, as questions « tending to show » the jury has already been
informed.

It is he himself who will be able to question his credibility grounded on the indirectly
relevant matters of his convictions and bad character, in three possible ways.

– First of all, the accused may have taken the advantage, by evoking himself, in giving
evidence, the difficulties he encountered with the law : for example in R. v. Jones v.

15 Ibid., p.176.
16 The Criminal Evidence Act, 1898.

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D.P.P.17, Jones gave a first alibi for murder, then a second one, and later he explained
that he chose to do so because the police would not have believed the real alibi which
was uncorroborated, since he had been in trouble with the law before.

– Then, in the course of the cross-examination, he can put his character in issue by
endeavouring to appear as of good character, or by criticising the prosecution’s
character.

– Lastly, when he gives evidence of someone charged jointly with him.

In practice, one can hardly separate the findings about character and the inquiry on the
likeliness to have committed the present offence; either the one or the other are closely
related to the accused’s general credibility, since they either fortify or blemish it.
When the accused deprecates the character of the prosecution or praises his own, he
may not only be cross-examited to disprove him by showing that he is of bad
character, but this also entails the displaying of his previous convictions.

This double counter-attack verifies that the term « character » has a broad meaning and
covers both reputation and disposition to act so, though these are not necessarily
dependant on each other.

The accused raising the issue of his character will naturally testify more to past acts
than to the judgement other people have made on them.

Formerly, evidence of character was the very element that was to enable the making of
a decision. But it was to be evidence of good character, and when the balance of the
jury’s judgement weighed towards conviction, but evidence to convict was still doubtful.

With the case of R. v. Rowton18, English law analysed more accurately the possibility it
had granted the accused in order to favour him, and it was decided that in all fairness,
it was right to give the opposite party a possibility to rebut the evidence of the
accused’s character exactly in the same general way, and show his character as bad if
it was indeed so.

3. Evidence of good character

In the course of his trial and in cross-examination, the accused is perfectly allowed
to give evidence of good morality and respect, as seen by those surrounding him.

This factor does not go directly to the issue of the case, but affects the weight of his
testimony, though it cannot be « a ticket to an acquittal ».19

17 R. v. Jones v. D.P.P. (1962), 1 All E.R., 569.
18 R. v. Rowton (1865), All E.R., Rep., 549.
19 R. v. Bellis (1966), I All E.R., 552.

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The judge will not forget to remind the jury of this favourable element in his summing-
up.

In R. v. Bellis, Bellis, on appeal for conviction on two counts of possessing explosives,
is an « amusing » case, for counsel for the defendant criticized the too measured terms
of the judge’s directions.

The judge said to the jury that mere possession of good character was not sufficient for
a man to be acquitted, but that « a person of good character is less likely to have
committed this type of offence than a man of bad character ».20

Counsel regretted this under-statement that in his mind, made things neutral whereas
he would have substituted the more positive observation that previous good character
rendered the accused’s testimony more credible. The Court of Appeal held that the
deputy chairman’s direction was « logically… no less favourable to the appellant ».21 In
effect, an accused who leaves the jury in doubt will necessarily be acquitted, and
evidence of character cannot be isolated from the whole of the evidence, otherwise the
judge would have usurped the role of the jury.

Adduction of good character must be relevant to the offence charged, and if the
defendant is accused of theft, and alludes to his reputed kindness and obligingness
towards his neighbours, his statement will be disallowed as a collateral one, distracting
the jury from the real issue.

When an accused stands as a witness and alludes to his previous good character, the
impact of it goes to his credibility and further more, it casts doubt upon prosecuting
evidence by the distraction it creates.

When the accused chooses not to go into the witness box and evidence of his good
character is given by his witnesses, it is the reverse, for then his witnesses’ evidence of
his character must be « treated as something which affects the likelihood of guilt as well
as credibility ».22 This in fact depends on the whole of the evidence.

An accused will lose his shield if he alludes to his honorability through the fact that he
is a regular mass-goer23, or a long and comfortably established man leading an honest
life with a wife and children.

When a man presents his conviction himself, to show that he is quite clear in all other
respects, whereas he has numerous others behind his life, he puts his character in
issue and can be cross-examined as to his other previous convictions.

A claim for innocence of the offence however, will not curtail cross-examination as to
his character, the issue of which will not be raised except by himself.

20 Ibid., p.552.
21 Ibid., p.553.
22 Cross, Sir R., Cross on Evidence, p.408.
23 R. v. Ferguson (1909), 2 Cr. App. Rep., 250.

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But, for a man charged with, for example, stealing, to try and negative the accusation
through evidence that he gave back the owner his lost property on previous occasions,
is establishing his own good character.

In Lowery v. R.24, the case went to appeal because Lowrey’s counsel complained of
the expert’s evidence, through his description of the psychological conditions which
tended to prove guilt, might prove the capacity of the accused to act so.

The Court of Appeal answered that the complainant had set himself up as a well-
established and balanced man, with good hopes for the future and without any interest
in the way the killer behaved. He could not reproach himself with previous convictions,
he could not possibly have committed the murder.

In short, he had forfeited his shield and therefore, ha was liable to be replied on the
grounds of his reputation for morality, and have his record revealed, but never with the
intent of having the jury conclude that the accused was likely, from his previous
misconduct or character to have committed the offence for which he was being tried.

But evidence that had been given by the expert was evidence about the respective
intelligence and personnalities of the two accused, not evidence in regard to their
characters.

Whereas the accused’s evidence of his own character must be relevant to his present
charge, the ensuing cross-examination may show any of his previous offences : « He
cannot assert his good conduct in certain respects without exposing himself to inquiry
about the rest of his record so far as this tends to disprove a claim to good
character. »25 That which would, however, tend to say that any person guilty of any
previous bad conduct has taken the bad road and is more likely to lie; and if the judge
allows the evidence, more than a rebuttal, does not it bear on the whole credibility of
the accused?

In R. v. Longman, R. v. Richardson, the judge’s direction on Longman’s character
was : « As far as Longman is concerned, you have heard that he has got a long and
painful criminal record for dishonesty and violence… Just bear it in mind as one of the
factors as to whether you think he may have been telling you the truth. »26 (As a matter
of fact the judge did not forget to warn them : « It is for the prosecution to make sure
before you can convict. »)

Counsel for Richardson discussed before the Court of Appeal that evidence of bad
character in retrospect could not impair the accused’s general credibility, but that it
could « do no more than rebut or concel out the effect of the evidence of good

24 Lowery v. R (1973), 3 All E.R., p.672.
25 R. v. Stirland (1944), 2 All E.R., 3, p.18, by Lord Simon.
26 R. v. Longman, R. v. Richardson (1968), 2 All E.R., p.767.

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character ».27 The jury was to be instructed accordingly, otherwise it could be unfair –
Bellis’ case conversely, could not be seen as fair. Their Lords criticized the restrictive
reasing of the counsel – for to rebut means to give rebutting evidence – and doubted
strongly that the jury might be able « to understand such a direction, which verges on
the metaphysical ».28

Obviously, it cannot be expected of a jury to attach the required weight. Evidence of
the accused’s character is displayed when he himself sets it in issue. Then the jury can
wonder what sort of personality is speaking so, and it is right that character and
conduct should be examined.

Prosecution’s evidence of character must first be evidence of general reputation, and
not just prosecuting witness’ opinion.

So it is for the accused, but as we saw it with Longman, he was permitted to give
specific examples of his character : allowing it for the accused is court practice.

In R. v. Rowton, an interesting argument took place, leading to the decision that
evidence of character has to be evidence of general reputation in his neighbourhood or
in the community to which he belongs, and then the acquainted witness can give his
opinion « inferred from his personal experience »29 with the with the witness; but he
cannot refer to specific facts.

In this case the prosecuting witness was not allowed to adduce specific facts because
it would have been too partial an evidence, and since in too close connection with the
particular case, it might have led to the inevitable complication of side issues.

The Rowton case’s decision has recently been reminded to the courts.

A teacher was charged with indecent assault upon a fourteen years old boy.

He called witnesses to character, in order that they could testify to his good character
and good conduct.

The prosecution called a witness to rebut evidence of good morality, who was asked :
« What is the defendant’s general character for decency and morality of conduct? ». The
reply was : « I know nothing of the neighborhood’s opinion, because I was only a boy at
school when I knew him : but my own opinion, and the opinionof my brothers who were
also pupils of his, is that his character is that of a man capable of the grossest
indecency and the most flagrant immorality. »30

His evidence was judged inadmissible since he referred to specific facts, inducing the
court to believe in the guilt of the accused.

27 Ibid., p.767.
28 R. v. Longman, R. v. Richardson (1968), 2 All E.R., p.467.
29 R. v. Rowton (1865), C.C.R., p.279.
30 R. v. Rowton (1865), C.e.R., p.275.

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The he might have said that he had heard nothing about his reputation in the
neighborhood but that acording to him, this man’s general character was bad.

He declared he knew nothing about the reputation of this school-master, and this,
negative evidence « was taken to favour the defendant »31 : since nothing could be
reported about his general reputation, it could be considered unblemished : « It is the
best of his character that he is not talked about at all, and in that sense such evidence
is admissible. »32 The conviction was quashed.

Evidence of character just goes to the credit of the accused, for it is not to be inquired
directly into his antecedents : whatever may be, it would be dangerous and unfair to
shackle the accused with the chains of an habitual offender, with the aim of showing
that he more than likely committed the crime wherewith charged.

General estimation of the accused through personal experience of witnesses who have
had a long personal knowledge of, and acquaintance with him, is more « real,
substantial »33 than general reputation alone, insufficient because it may be too vague
and uncertain : « personal experience gives cogency to the evidence ».34

Naturally, general statements to character raise the problem of rumours.

A few cases seem to have admitted remours and suspicions. As a whole however, and
until recently, English law of evidence did not accept them, as a principle and because
it is impossible for a witness to rebut them.

In Scott v. Sampson35, the defendant was charged with wicked libel in his newspaper
and he called a witness to show that this latter had heard the story. On cross-
examination, it was discovered that the witness had heard it in some club, probably
from some idle gossip. The defendant, who pleaded justification, was refused to show
that there had been rumours previous to his libelling article in his newspaper for the
subsequent problem could have been : to what extent is it possible to prove that such
rumours injured the plaintiff’s reputation – though evidence of the plaintiff’s reputation
was to show the influence of these rumours, and he could have called his witnesses to
character, in rebuttal, showing his character was good. But the impalpability and the
feature of evidence of rumours and suspicions make it difficult to meet and negative.
Lawyers do not forget that these rumours may originate from the defendant himself.

Another argument of weight going to the inadmissibility of evidence of rumours and
suspicions, is that it is to give anyone who dislikes the accused, the opportunity of
spreading false and evil information; everyone knows the consequence of rumours that

31 Ibid., Cockburn, J., p.279.
32 Ibid., Cockburn, J., P.279.
33 Ibid., Erle, C.J., p.277.
34 Ibid., p.278.
35 Scott v. Sampson (1882), Q.B.D., 491.

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swells, spreads…36, always something remains of it, even if there was not the slightest
grounds for it and if the accused has been cleared of it or not. According to Cross, the
admission of evidence of rumours in defamation « depends on the pleadings in the
particular case ».37

When a man is attacked by name through libel as « a notorious, dodgy operator of
London slum properties », « a wily dodger » and « the man whose estate agency was …a
fraudulent business from beginning to end »38, evidence of his character or convictions
do not go solely to his credit but they are relevant to the issue, on the question of
liability, when justification is pleaded. The purpose of defamation is to « tend to lewer
the plaintiff in the estimation of right-thinking member of society or which would cause
him to be shinned and to be arrided ».39

It was contended by Waters in mitigation of damages, that the prosecution wanted to
adduce these judgements, relevant to the dafamation, as specific facts, contrary to the
decision in the Scott case to accept only general evidence of reputation.

The House of Lords, ruled that such specific acts might be put in cross-examination
just to show that the plaintiff has the reputation of one who is used to performing them.

4. Accused’s imputations on the prosecution

The 1898 Criminal Evidence Act decided that evidence of bad character of the
accused was to be given against him in cross-examination when the accused had
himself put his character in issue, or made « imputations » on the character of the
prosecution.

The critical point of this Act, which gave rise to many controversies, was that the
accused’s character was also at stake when « the nature or conduct of the defence is
such as to involve imputations on the character of the prosecution or the witness for
the prosecution ».40

This clause had to be broken down and debated on two points :

1. How to ascertain that the « imputation » amounts to nothing more than a denial of the
charge, it being quite a simple or (even) an emphatical denial?

2. How to make sure that it is a necessary part of the presentation of the defence; and
when such is the case, is it really permissible to cross-examine on character even if
the defence of the case by itself involves imputation(s)?

36 Beaumarchais, Le Barbier de Séville.
37 Cross, Sir R., Cross on Evidence,p.409.
38 Waters v. Sunday Pictorial Newspapers Ltd (1961), 2 All E.R., p.758.
39 Lord Atkin in Sim v. Stretch, (1936), House of Lords.
40 Criminal Evidence Act (1898), f (ii).

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This last point is crucial because it seems to be conflicting with the raison d’être of the
1898 Act that was to enable an accused to give evidence on his own behalf in all
criminal cases : was it then possibly construed with the risk for the prisoner to have all
his record disclosed on trial whenever his defence was necessarily linked up with
imputations on the prosecution’s character, as for example, in rape cases, where the
« tit for tat »41 argument of consent is given in reply to the charge, where the accused
may just be trying to elicit what actually happened.

In was contended in many different cases that treating someone with « liar »42 was
strong and even injurious a denial of the offence, but which did not affect the character
of the prosecuting witness, whereas the bond was exceeded whenever the accused’s
evidence alluded to the prosecution’s general conduct outiside the evidence given by
this latter.

In R. v. Jones43, Lord Hewart, C.J., ruled that the accused had gone beyong what
should have been a proper denial because he had contended that not only had there
never been any such alleged confession, since there had been acts of bribery, but that
the prosecuting inspector had « elaborated and deliberately concocted the thing ».44 This
was no attack on the evidence of the policeman as policeman, but an endeavour to
blacken the personality of the policeman with the innuendo that he was the sort of man
who could turn things without any scruples.

In Seley v. D.P.P., Lord Guest and Judge Singleton45 : « If the credit of the prosecution
or his witnesses has been attacked, it is only fair that the jury shoul have before them
material on which they can form their judgement whether the accused person is any
more worthy to be believed than those he has attacked. »

Therefore, with Selvey who had to respond to a charge of buggery on a young man
(and who counter-attacked by alleging that this young man would have gone to bed
with a man for the second time on the day, after his showing him indecent protographs,
later to be found in the bedroom by the police, and after his asking Selvey to go with
him for £1), there was even implied an assertion of fabrication of the accused’s charge
because the accused would not give him £1. This caused him to have his record
disclosed as to his convictions for indecency.

Counsel for the defence ended his cross-examination of the prosecuting witness46 :

41 Lord Pearce in Selvey v. D.P.P., (1968), 2 All E.R., p.521.
42 R. v. Rouse (1904), 1 K.B., p.164.
43 R. v. Jones (1927), 7 Cr. App. Rep., p.117.
44 Ibid., p.120.
45 Judge Singleton in R. v. Jenkins (1945), 31 Cr. App. Rep. 1, p.15.
46 Selvey v. D.P.P., p.500.

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– And that an incident of this nature had taken place earlier that afternoon, with
another man?

– No true.

– And that because (the appellant) would not give you £1, you are blaming him for
your condition.

– No true.

Later the judge (at the end of the cross-examination of the accused)47 :

– You are asking the jury, are you not, to disbelieve this young man, because, as
you say, he told you that he had been buggered that day and buggered by
somebody else? That is what you have told the jury?

– That is correct.

– You are asking the jury to disbelieve him because he is that sort of young man?

– Yes.

The line however, is often very narrow, which divides a denial from an attack on the
character of the prosecution, and from R. v. Hudson (1912) to R. v. Cook (1959), up to
Selvey through R. v. Turner (1944), it has been progressively decided that the
application of the 1698 Act should be so.

In R. v. Hudson, Lord Alverstone said48 : « The words of the section « unless the nature
of conduct of the defence is such as to involve imputations », ect, must receive this
ordinary and natural interpretation, and that it is not legitimate to qualify them by
adding or inserting the words ‘unnecessarily’ or ‘unjustifiably’ or ‘for the purposes other
than that of developing the defence’, or other similar words. »

In R. v. Turner49, an accusation of rape, the accused alleged consent of intercourse
and Judge Humphrey put the charge into its logical frame; he put the counter-
accusation on the same footing as a sharp denial such as « liar »50, and stated that « what
is commonly referred to as the defence of consent in rape is in truth nothing more than
a denial by the accused that the prosecution has established one of the two essential
ingredients of the charge ». Then there should be no peril of cross-examination as to
the accused’s character.

47 Ibid., p.500.
48 R. v. Hudson (1912), 2 K.B., pp.470 – 471.
49 R. v. Turner (1944), 1 All E.R., p.601.
50 Ibid., p.506.

104

In R. v. Cook51, Judge Devlin emphasised that « unless it is given some restricted
meaning, a person’s bad character, if he had one, would emerge almost as a matter of
course ». That is to say that an accused cannot claim the prosecution does not state
things truly without making imputation on the character of the prosecution. Then again,
the issue is raided by the prosecution. Where the inner logic of matter imposes itself,
procedure falls short.

But for a reasonable man, for an Englishman, there must remain « a guiding star ».52
This star is the spirit of fairness explained by Lord Hodson in the following words53 :
« There is abundant authority that in criminal cases, a discretion to exclude evidence,
admissible in law, of which the prejudicial effect against the accused outweighs its
probative value in the opinion of the trial judge. »

Through R. v. Cook54, whose defence was conducted as to involve imputations on the
character of a witness for the prosecution, a policewoman, two schools of thought
confronted one another, the arguments of whom emphasise the role of the judge’s
discretion.

Cook was convicted for obtaining a car under false pretences and receiving five
cheques that he knew were stolen cheques.

The policeman stated the admissions of the accused to his offences.

Then Cook made a second contradictory statement, saying that he had found the
cheque book.

The accused had no counsel and himself cross-examined the witness, so as to
suggest the statement had been extorted by the policeman by the threat that if he did
not speak, then his wife would be charged; this was denied by the witness.

When Cook was cross-examined as to what he said in his defence, he repeated he
had been thretened by the Detective Constable, whereupon the Counsel for the
prosecution said « he wished to put him further questions ».55

Then details of his previous convictions were given, which was as the motive of Cook’s
appeal.

Lord Devlin, J, explained that when cases appear to fall within the words of the law,
then the judge ought to exercise his discretion so as to make sure that the trial will be
fair for both parties, and measure each witness’ attack to its prejudicial effect on the
other witness.

51 R. v. Cook (1959), 2 All E.R., p.109.
52 Lord Hodson in Selvey v. D.P.P., (1968), 2 All E.R., p.520.
53 Ibid., p 515.
54 R. v. Cook (1959), C.C.A. 97.
55 Ibid., p 99.

105

The judge must be vigilant that the witness be not wholly discredited with the accused
keeping his protection as to the cross-examination on his own character. It must be
exact justice.

There is no justice favouring the accused either because he is in the weaker position
or because he pleads injustice, endeavouring to have the court think that he is the real
victim whereas his case is overwhelming : pity, weakness, must not be sentiments
pertaining to the spirit of justice.

Judges must be upright and ignore faces.56

The Court also underlined the necessity of warning the defendant that he is conducting
his case in a dangerous way, and there had been no warning in this case : the
question ought not to have been put as to previous convictions. But the appeal was
dismissed because the case was obviously against the appellant and there had been
no miscarriage of justice.

It seems the opinion of the Court of Appeal that the question as to convictions should
not have been put, originates from this lack of warning. It might be thought that alleging
the confession had been made under threat, actually questions the « integrity »57 of the
policeman.

English law goes in the direction where, as far as convictions are in cause, it favours
the accused : that is to say that when the accused did not put his character in issue
and did not cast imputations on the prosecution, his record is not disclosed and he
may escape punishmant if his case is well presented.

But there is not, in English law, a discretion to reveal convictions, except in the case of
similar fact evidence.

Certainly this goes with the principle that English citizens must trust England’s justice,
and that an innocent must absolutely not be incriminated by the passion of a jury. A
« modern » line of thought is that having a record is meaningful of the personality of the
accused; and that it would be more efficient for justice to be done, that it should be
systematically used as a deterrent against the accused, except for trivial cases.
Obviously, this in turn can cause a great amount of case-law.

There is always the risk of classification of the accused – robber, forgerer, assaulter –
and therefore it would not help the accused not to suppose that he may have amended
his ways, and it would perhaps not guide him to do so either.

Better than a statistical analysis, it would be interesting to study the causes of
wrongdoings in society.

56 the Thora, Ex.23.
57 R. v. Cook (1959), C.C.A., 97, p.101.

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105

The judge must be vigilant that the witness be not wholly discredited with the accused
keeping his protection as to the cross-examination on his own character. It must be
exact justice.

Judges must be upright and ignore faces.56

But there is not, in English law, a discretion to reveal convictions, except in the case of
similar fact evidence.

Better than a statistical analysis, it would be interesting to study the causes of
wrongdoings in society.

56 the Thora, Ex.23.
57 R. v. Cook (1959), C.C.A., 97, p.101.

106

5. Accused’s evidence against a co-accused

In the rules of testimony, we saw that for anyone tried jointly with him, the accused
is competent but not compellable. Therefore, the most distasteful situation may arise
where, once he has given evidence for himself, carefully answering questions, the
accused will not necessarily be willing to be called by the defence counsel of the truth
concerning the co-accused!

Even if the accused just remains quiet about anything he knows about someone
charged jointly with him, matters favourable to the co-accused may not be elicited nor
proved, since no cross-examination will be able to take place. This would be dramatic.

The Keith Hilton case58 exposes such a risk.

Nine young people were together convicted of « aiding and abetting an affray ».59 After
the first accused had been examined in chief, counsel for a co-accused, then other
defending counsels claimed their right to cross-examine him.

This right was denied by the judge, on the grounds that the first accused alone was
involved in his testimony, and had said nothing adverse about any other co-accused.

Lord Pearce, appeal judge, ruled that there exists a right for cross-examination, this
right being invested with the enacted protection of S.1 (f) of the 1898 Criminal
Evidence Act.

This cross-examined co-accused can be asked questions tending to incriminate his as
to the offence charged; but no question as to his previous convictions or bad character
can be put to him, unless he has « given evidence against the co-accused ».

Therefore, the judge will warn the prosecution of its duty, and see that the co-accused
is not « cajoled into saying more than it was ever his plan or wish or intention to say ».60
When the co-accused’s counsel seek to « compel the accused to bring to the forefront
implications which would otherwise have been unnoticed or immaterial »61, then leave
to cross-examine on this accused’s credit will be refused.

The word « against » was interpreted by the criminal court judge in R. v. Hilton as
« adresse ».62 As a matter of fact, this word gave rise to many questions.

« Against » is qualified by Lord Morris of Borth-Y-Gest of « strong », « clear », « robust »
word63, not implying so many nuances as the expressions « tending to show », or « such
as to involve ».

58 R. v. Hilton (1971). All E.R. 542.
59 Ibid., p.542.
60 Lord Morris of Borth-Y-Gest, in Murdoch v. Taylor (1965), 1All E.R., p.409.
61 R. v. HIlton (1971), 3 All E.R., p.544.
62 Ibid., p.543.
63 Murdoch v. Taylor (1965), 1 All E.R., 409.

107

The mind of this formulation however, cannot contain the whole of the evidence which
would tend to incriminate the accused, other-wise the formulation would have been
different, and « tending to incriminate » substituted.

Hence the proviso would be so construed as to render it almost impossible for an
accused with convictions to defend himself against the results of his statements which
would have come to contradict any other co-acccused’s statement.

Since the proviso is a prohibition, it is written into a general possibility of asking
questions tending to criminate the accused (S.1 (e)).

But it cannot be said that any question can be put to the accused in the circumstances
when the proviso stipulates that the accused has « given evidence against » the co-
accused.

Therefore, what is important is the « nature »64 of the evidence.

If the accused’s evidence is of such a nature as (or if its degree of relevance is such
as) can come into consideration in the summing-up of the judge for the decision of the
jury, then it can be said that there is « evidence against ». But the co-accused has the
right to defend himself « by such legitimate means as he thinks it wise to employ ».65

Nevertheless, the judge can decide to disallow the questions, according to the « test of
relevance »66, which means that the question asked must induce an answer that will
further the understanding of the case (the question then goes to the issue), or else will
show that the accused cannot be believed on his oath (the question then goes to his
credit). His quarrels with the law will be irrelevant to the extent they may entail
confusion in the jury’s mind, that is to say : this accused must be guilty since he has
previously been judged guilty for other offences. For leave to be granted to the co-
accused’s convictions or character, it is desirable that the jury be asked to retire for a
moment, to preserve anything publicly « at the expense of »67 the accused.

This proviso increases the responsibility the judge had in proviso II : with this third
proviso, he must not only ensure fairness between the prosecution and the accused,
but also between the accused and his co-accused(s).

64 Murdoch v. Taylor (1965), 1 All E.R., 409.
65 Ibid., p.410.
66 Ibid., P.410.
67 Ibid., Lord Pearce, p.411.

108

CONCLUSION

Common law finds its origins in the Royal Courts, at the time their praised efficiency
led individuals to submit their cases to it.

Stress was more laid on procedure in order to fight against the opposition of the feudal
lords.

Through the creation of new courts, common law preserved its tradition and improved
to a reasonable mind allied with experience, setting conflicts in a spirit of justice.

The governement of England has for a long time been theocraty, and from the Saxons
onward, many fights have been carried on so that kings should respect their subjects
and be in the service of justice.

Trust is a bond of union between government and its subjects.

At present there is no public prosecutor in England, and justice does not rest on the
indictment of suspects, but on the examination of testimonies, principally oral
testimonies.

The conduct of the inquiry, the interview of witnesses and the decision as to charge
before a court depend chiefly at present in the police, who moreover can be witnesses
and advocates at the same time in trials. (In the future, magistrates’role will be
enlarged with this prosecuting duty).

The courts intervene only if police powers have been improperly exercised, as when
confessions are extorted, or when witnesses’ identification of a suspect is guided by
the police.

Rules laid down by the judges have no force of law, and sometimes seem uncertain
and weak in their formulation; this may lead to abuses and clog the course of justice.

The voir dire and the examination of policemen’statements, along with the power of the
court to call further evidence, area remedy to this danger.

Competency is no longer a privilege, but a duty for everyman. Notwithstanding the very
great inportance of the oath in English legal history, testimonies may now be given
under solemn affirmation; they may even be unsworn, and then it spares witness the
hardship of cross-examination, whatever imputation he cast on the prosecution.

After the exposal of the witness before the court and jury of all that he knows about the
case, in examination, and before eventual re-examination, a final stage of verufication,
cross-examination which verifies, goes deeper into the subject, brings forth and
ascertains, excludes, questions, rebuts and discredits. Starting from the principle that
all testimonies are faulty to some degree, it tests the witness’ qualities of observation
and memory, granting importance to his demeanour : what does this man’s

109

appearance show, he who has an accused’s future in his hands, swearing away his
honour and sometimes his life.

Is it possible that it should remain an uncertainty even as to the identity of the culprit?

The selection of grounds of unreliability bears on the witness’ competence to tell the
truth or distort it through his physical or mental condition.

The analysis has refined itself up to stating to what extent the credibility may have
been affected, a judgement which in turn may be closely scrutinised in court.

The veracity of the witness can be impaired by a contradictory previous statement, and
weakened by the contentions he may have had with the law, which have resulted in
convictions.

A thorough examination will search whether the testifying witness is biased in favour of
one party or the other : what this partiality rests on, and what the nature of the
relationships with the one or the other of the parties is. Are these pre-judgements
merely accessory, or do they bear on the ultimate question in issue, meeting a general
opinion about the character of the witness in his neighborhood?

If necessary, another witness will be called to impeach the first one by rebutting his
denials.

Testimony however, will have to be grounded on personal knowledge of the accused.
Hearsay evidence is rejected because English law excludes all categories of evidence
that are unsafe – that is to say, subject to distortion or even concoction : second-hand
evidence, or worse, do not offer any opportunity of testing their reliability.

Since a situation nevertheless is the result of the interweaving of acts and words, it is
well assumed that the events cannot be extracted from the circumstancial facts that
instigated them, in order to be truly understood. Consequently, they can be referred to
independently of the truth they convey, to show that they happened in the chain of
events.

Exceptions to the hearsay rule bear on situations in which the witness is liable to speak
the truth because he has been directly involved in the event, and the immediacy of his
testimony under the ascendancy of the mental or physical shock ensures its
spontaneous sincerity.

The similar testimony of several witnesses will not be backed up by the number of
witnesses, who on the contrary will be cross-examined as to their possibility of
wickedness to have an innocent convicted by means of a plot.

As for the treacherous witness turning against his party, he will be vigorously cross-
examined as to his prevous statements, but his whole personality cannot be put in
doubt by referring to his evil past conduct and convictions, or his character as a liar.

110

So that a witness might be able to testify freely, truthfully, the law grants him the
privilege of not answering questions that might incriminate him and lead him to
conviction.

Legal professional and marital communications can be privileged from disclosure; the
former to favour the ascertainment of truth, and the latter to preserve the individual’s
private confidential life.

Privileged though highly relevant facts can be disclosed in order to establish the
innocence of an accused.

An innocent must never run the risk of being convicted and the examimation of his
testimony will not permit that evidence of his character should be confused with the
likeliness of his guilt.

An accused’s character and credibility cannot be challenged in cross-examination,
unless when he forfeits his shield by setting up his good character or by attacking the
prosecution’s one, or by giving material evidence about a co-accused.

Evidence of the accused’s bad character is displayed wherever it is directly relevant to
his guilt of the offence charged : the repetition of undoubtedly similar criminal events in
his life can show he is likely to have committed the offence. Cross-examination rules
conderning the accused are very technical. One can never ask him questions totally
tending to incriminate him and he is never totaly protected by his shield. The degree of
relevance is a decisive factor to be evaluated by the judge at his discretion.

This discretion is not a discretionary power and its aim is not to supply the deficencies
of the law either. Its justification is to be vigilant that an innocent should not be
convicted out of non-respect of the procedure of examination of testimonies and that
the trial should be fair between the prosecution and the accused, and his co-
accused(s). For this he can go so far as prohibiting cross-examination of the accused’s
character even if it is permitted by the law.

This is because English law is able « to set the essentials of justice above the technical
rules if the strictest application of the latter would operate unfairly. »1

English judicialy practice rests on biblical eduction and even the term « cross-
examination » comes from the Tractate Sanhedrin.2

« As written in the text of Prophet Isaie, transcribing like a clerk what eyes see and what
ears hear is not sufficient.

1 Harris v. D.P.P., (1952), 1 All E.R., p.1048.
2 Tractate Sanhedrin. London, The Soncino Press, 1969, new edition.

111

Testimonies must be verified and criticized in a passionate care for truth and
impartiality, so that law and morals should form a unity »3, ensuring in this way the
perenniality of civilizations.

3 Professor H. Baruk : Droit Hebraïque et Science de la Paix. Paris, ed. Zikarone, 1970, p.62.

112

ANNEX

113

These questions are answered by a Superintendant in Sheffield :

1. By interviewing witnesses and the complainant.

2. No.

3. Yes.

By comparison.

4. Occasionally.

5. Re-interview the witness.

6. Witnesses do not make the decision to charge. That is up to the Police.

7. Yes.

Yes.

8. Yes.

As soon as possible.

9. Don’t know.

10. Don’t know.

11. If there is any forensic evidence, etc.

12. Attempts to skillfully interview him.

13. Yes.

No.

14. Details of fact, what has been seen when and where.

15. The right to stop and search.

16. Nothing specific.

17. Each divisional Chief Superintendant does this.

From P.C. to Sergeant to Inspector to Chief Inspector to Superintendant and then
to Chief Superintendant.

18. Yes.

19. They only have to show enough evidence to prove to the Magistrate that the case

can go to court.

114

20. Only if the defence counsel agree to accept their statements and then there is no

cross-examination.

21. If the Police wish the witness to attend then they are summoned to attend court

and cannot refuse.

« These questions are answered by Police Constable K.B. and are his opinions ».

115

Doran put various statements to the police, which came to contradict the ones he
made in court.

It had been paid by cheque but finally in cash, owing to external pressures.

The same evidence given by two witnesses was rendered impossible by two other
witnesses : the same persons were either traders and robbers, or money-lenders and
thieves.

No one knew where the bags came from, except the accused because he had bought
them. In fact, he did not know since he had been the victim of a machination.

Then once more, a man whose existence was unknown to the prosecution, made an
application to give evidence.

The two new witnesses could prove that the accused had sought to sell each of them a
certain number of handbags of the same type as the ones which had been kept by
Doran, at the time of the theft.

151 Ibid., p.438.
152 R. v. Richard Doran, (1972), Cr App Rep, Davies, L.J., p.437.
153 Ibid., p.439.

116

Unless fairness commands it.

154 Ibid., p.429.
155 Ibid., p.436.
156 R. v. Browne (1943), 29 Cr. App. R., 106.
157 Ibid., p.111.

117

B. The Accused as witness

1. Right to silence

An accused is not obliged to go into the witness box to make a sworn testimony. He
can choose to remain silent.

Obviously, the fact that he refuses to stand as a witness weighs diffently on the jury
according to whether the burden of proving the case is upon him or not, or even is
distributed.

If it is up to the prosecution to prove the facts, it is certainly more « natural » for the jury
that the accused should be represented.

If the burden is upon the accused, the judge may say that he just « runs the risk of not
being able to prove his case ».2

The accused’s right of silence may also be seen as a privilege, since he then cannot
be submitted to cross-examination.

An accused is a competent witness for the defence at every stage of the proceedings,
whether in a joint trial or not. He can remain silent until the prosecution has proved its

1 R. v. Bathurst (1968), 2 Q.B., 99.
2 R. v. Bathurst (1968), 2 Q.B., 99.

118

case. Yet, if he then says nothing, he meets the human inference that this silence
amounts to acquiescence.

If the chooses to testify, he can give his evidence in two ways.

Either he can give an unsworn statement from the dock.

Or he can be sworn and stand in the witness box.

2. Unsworn Statement

There is no cross-examination on an unsworn statement. The prosecution may
contradict him on this point only if the defendant emphasises his good character.

3. Loss of Privilege

The court indeed decided that there was no answering and then using this privilege as
to dangerous questions for the establishment of his guilt.

The defendant’s behaviour was stressed and turned against him by the leave and then
the support of the court.

3 State v. Ober Supreme Judicial Court of New Hamppshire (1873), (Reported 52 NH 459), in A

Selection of Cases on Evidence at the Common Law, Thayer, Cambridge, Ch. W. Sever and Co,
1900, p.1123.

119

This was in 1873 and such examples led to the 1898 Criminal Evidence Act.

4. Statutory Protection

5. Accused’s convictions

An accused’s record cannot be revealed in order to verify what the accused is
declaring in court. This for three reasons :

– First, to save energy : in order to give proof, one must not assume, suppose or infer
in an anarchical manner.

120

Accordingly, he will have to stand as a clear man before the jury; for there exist always
favourable elements in a man.

« Logic would admit the forbedden proof, but the necessity of avoiding prejudice is
stronger than logic. »4

– Thirdly, an accused may always have a change of heart.

In England, on principle, it will not be shown that a man has previously committed an
offence. Not de jure.

Thus, only, and only on condiction that facts appear as not being due to chance, then
other similar acts may be raised.5

This, however, will still not be sufficient.

4 Lord Simon de Glaisdale in D.P.P. v. Kilbourne (1973), A.G. 729, p.757.
5 S.1 (f) I Criminal Evidence Act, 1898.

121

Another case in which there is no external sign of offence but which shows the
accused acted in full conscience, having already elaborated a system, is that of R. v.
Rance.8

A man was charged with bribery. He had given money to one of the members of a
council (proof was brought that he had made out a cheque).

His defence was to say that he had in fact been cheated, and led to pay the money for
legitimate past services.

The prosecution was allowed to show that there was no innocent intent in his actions.

The present answer seems to be that for two cases to form a system, there must
already exist some proof of the accused’s guilt.

6 Hoffman, The South African Law of Evidence, 2nd ed., p.53, 2nd Ed., p 53, quoted by Cross, Sir R. in

Cross on Evidence, London, Butterworths, 5th ed., 1979, p.368.
7 R. v. Smith (1915), 11 Cr App Rep, 121.
8 R. v. Rance (1975), 6 Cr. App. R., 118.
9 R. v. Bond (1906), 2 K.B. 389, p
10 Ibid., p.420.

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