SQE 1 Trial - Criminal Litigation

What competence mean in regard to a witness

Whether the witness is permitted to give evidence to the court.

a witness is competent if a person 'may lawfully be called to testify

When is a witness not competent to testify

The defendant/accused- The defendant (co-defendant) is not competent to be a prosecution witness - can give evidence on their own behalf and are competent to give evidence on behalf of a co-defendant

Children and persons with a disorder or disability - whether the child or disable person can (1) understand questions, and (2) can give comprehensible answers.

Note

Spouse/civil partner - are competent but may not be compellable - see below

Deaf or speech impaired witness - These witnesses are competent so long as they understand the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these.

Who is not compellable

(1) Spouses/civil partners

(2) Diplomats, sovereigns and bankers

What are the exceptions for spouses/civil partners not being allowed to testify i.e. compellable

Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie for the defence) but only for the prosecution if the offence charged against their partner is (PACE s 80):

(a) Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence)

(b) Assault on, or injury, or threat of injury, to a child under 16

(c) A sexual offence against someone under the age of 16

(d) Attempts, conspiring, aiding and abetting any of the above

- refusal can result in arrest and contempt of court

(Probs compelled in the exam if you see assault and sexual offence - person at the other end has to be spouse or child)

What is the rule on opinion evidence

Called upon only to be witnesses of fact.

Advocates argue facts.

Jury draw inferences and make conclusions from the factual evidence provided.

The courts will receive opinions from witnesses, but only if:

(a) The opinion is given in relation to commonplace occurrences about which the witness's perception

appears relevant and proper;

or

(b) If the witness is an expert.

What is considered as opinion evidence

Opinion that are on the observable facts rather than only eliciting the opinion for example: as witness: 'the attacker wore a blue cardigan is an observable fact but 'he was young and male' is an opinion based on observations

Voice and handwriting opinions likely to be admissible.

Another example: he was drunk not admissible but he had a slurred speech and dilated pupils is admissible

What will expert evidence cover and how is it used in court

Defining Expertise: Areas requiring expertise include technical matters of science, medicine, and psychology, among others. The party relying on the expert must establish their sufficient expertise, often through formal education or practical experience.

Neutral and Objective Role: Expert witnesses are akin to independent consultants, expected to remain neutral and objective. They are encouraged to meet with other experts to clarify areas of agreement and disagreement, narrowing the issues and explaining any divergent opinions.

Clarifying Expertise Boundaries: Experts must clearly define the boundaries of their expertise and indicate if the questioning extends beyond their relevant knowledge.

Restrictions on Direct Opinions: As a practice, advocates should refrain from directly seeking an expert's opinion on the final issue in a case without prior authorization (So if, for example, the question for the jury is whether the defendant caused death by dangerous driving, one should not a

Where will privilege apply

Self-crimination: Under common law the court will uphold a witness's right to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves. For them and not other persons and cannot be invoke to limit liability in the civil court.

Cannot prevent information being acquired from other route - any investigatory body is allowed to consider how to access the information.

Legal Privilege:

Exceptions made for

(a) The purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or

(b) To obtain advice more generally (advice privilege).

Also applies to third-party communication generated during, or in contemplation of, litigation.

If no litigation is involved then no privilege

Can be waived: Conduct, or explicitly. Only the client can waive it not the law firm

Overview of competence and compellability

see image

Separation examination witnesses

Who must take and oath and how

General Rule: All witnesses must either take an oath or make an affirmation before providing evidence, with no legal distinction between the two. , where unsworn evidence may be received without administering an oath due to their limited capacity to appreciate the solemnity of the occasion and the responsibility to tell the truth.

Religious Considerations: The court usher should have oath cards representing various religions, with the key factor being whether the chosen oath is binding on the witness's conscience, rather than a precise match to their specific religious beliefs. For instance, a Muslim witness was considered properly sworn after taking an oath on the New Testament.

Contempt of Court: Refusal to take an oath or affirmation can lead to punishment as a contempt of court, underscoring the legal obligation for witnesses to comply with this procedural requirement.

The test for children and those with unsound mind

Who are except from taking oaths

An exception exists for children and individuals of unsound mind

What are rules of the form of questioning

For examination in chief, the questions should be non-leading.

Evidence adduced from a leading question may be considered to be inadmissible or to carry less weight.

The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.

When will leading question be allowed

The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.

What are the rules on memory refreshing

Note statements made out of court are considered to be hearsay so there three ways in which an out of court witness statement may be used in court

Statements in Court:

(a) Reading Agreed Statements:

The statement may be read out in court if the contents are agreed upon, effectively overcoming the hearsay objection by instructing the jury to treat the read-out evidence as if the witness had testified in person.

(b) Refreshing Memory:

Witnesses may refresh their memory from their statement, allowing them to recall their evidence more accurately. It is essential to follow the statute, ensuring the written account significantly aids their recollection. Additionally, witnesses should aim to convey their refreshed memory as recovered recollection, not as a direct reading of the statement.

(c) Cross-Examination on Previous Inconsistent Statements:

During cross-examination on a prior inconsistent statement, the witness may refer to their statement without reading it aloud in the witness

What is a hostile witness and what is the process on examining them

Witness Retraction in Court Cases:

In some instances, a witness known to possess crucial evidence that could aid the prosecution may declare their refusal to present such evidence in court.

This scenario is commonly observed in domestic violence cases, where a partner initially reports being assaulted but later withdraws the statement before the trial, often due to pressure from the offending partner seeking to reconcile.

Treatment of Hostile Witnesses:

If a witness gives testimony contradicting their initial statement to the extent that the judge perceives their lack of willingness to tell the truth, the party calling the witness can request the judge to classify them as hostile.

Upon being labeled as hostile, the opposing party is permitted to cross-examine the witness and confront them with their previous statement as the factual account.

Use of Inconsistent Statements:

Any inconsistent statement presented to a witness can be utilized to establish the truth of its contents.

How can previous consistent statements be used - come to this

As a general principle of evidence, it is thought that an allegation made by a witness does not become more reliable simply because the witness repeated the allegation on numerous occasions.

It was therefore the general rule that the court hears the witness make the allegation in court, and it is not generally admissible to elicit evidence that the witness made earlier consistent allegations or statements

Exceptions to the use of previous consistent statements

Res gestae: This is a statement made as an immediate reaction to a crime being committed against the statement maker.

So, for example, if someone suddenly jumps up and shouts out on the tube 'what are your hands doing there you pervert!?', that would seem to be an immediate response to a potential sexual assault, and would be admissible. This would be admissible to prove the truth of the (implied) allegation.

Suspect's response to police allegation: The responses to all police allegations are admissible, whether they are confessional or involve self-serving denials of guilt.

If a suspect wholly denies an offence to the police, it may be useful to the jury to assess the overall conduct of the defence, and the consistency of the defendant's denials. It cannot go further and prove the truth of the denials.

Complaints:

Complaints are admissible where the complainant testifies that the earlier complaint was made and was true.

Allows the earlier complaint to show consistency in to show consistency in complaining and to prove the truth of the complaint.

Separation cross-examinantion

What are rules on questioning

Cross-Examination and Leading Questions:

Advocates are allowed to ask leading questions during cross-examination, which include factual statements that suggest the desired answer from the witness.

The Code of Conduct for barristers includes a principle that considers a witness's account tacitly accepted unless explicitly challenged on a particular point.

Browne v Dunn [1893] 6 R 67, HL established the principle of presenting an alternative factual case when in conflict with the witness's account. Similar principles are upheld in various jurisdictions outside the UK.

Factual Testimony and Avoiding Opinions:

Witnesses are generally expected to provide factual information rather than opinions, except in cases involving common matters, such as giving an opinion on someone's intoxication.

Asking a witness to comment on another witness, especially when they have given conflicting evidence, is considered improper and should be reserved for the closing speech rather than during questioning

What are the rules on previous inconsistent statements

Admissibility of Police Witness Statements:

Police witness statements are generally not admissible in court as they are considered hearsay.

Exceptions and Conditions for Admissibility:

Under section 119 of the Criminal Justice Act 2003, a police witness statement can become admissible if the witness providing live evidence in court materially deviates from the statement, either by contradicting it or adding new information.

Use of Original Statement in Cross-Examination:

The original statement can be presented and shown to the witness to highlight any disparities between the live testimony and the statement.

During cross-examination, the party employing the statement can emphasize that it was made closer to the incident and is a signed and sworn statement, highlighting the potential for memory degradation and witness error.

Significance of Discrepancies:

While minor inconsistencies are common and may not warrant cross-examination, substantial changes in the account can cast doubt on

What are the restrictions on cross-examination

Approach to Cross-Examination:

Cross-examination can be rigorous and may potentially upset, vilify, or provoke the witness.

Guiding Principles for Conducting Cross-Examination:

The Bar Standards Board Handbook emphasizes that upsetting a witness should never be done without a valid purpose and should not be carried out solely for the sake of it.

The judge plays a crucial role in assessing whether the line has been crossed in the nature of questioning during cross-examination.

Role of the Judge in Controlling Cross-Examination:

The judge is empowered to determine if a particular matter has been sufficiently explored and can impose time constraints on peripheral issues or topics already adequately addressed.

Legal Constraints in Questioning Victims/Complainants of Sexual Offences:

The law, particularly the Youth Justice and Criminal Evidence Act 1999, section 41, safeguards the questioning of victims/complainants of sexual offences. Questions regarding the victim's general promiscuit

Re-examination

Form of questions

In any case, if matters are raised in cross-examination which could not reasonably have been covered in examination in chief, then the party calling the witness may ask further questions after the cross-examination in re-examination.

These questions should follow the same rules as examination in chief - namely no leading questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary.

Rule on finality of collateral matters

Rule of Finality to Collateral Matters:

The rule of finality to collateral matters prevents trials from fragmenting into numerous insignificant disputes regarding credibility-related matters that are tangential to the central issues of the case.

If a witness is questioned in cross-examination about a previous falsehood on a mortgage application and denies it, the defence is barred from introducing evidence of the mortgage application since it is deemed collateral to the main issues, and the response "no" is considered final by the law.

Flexibility in Admitting Evidence on Bias or Partiality:

Courts are more flexible in allowing evidence to be admitted on the collateral issue of a witness being biased or partial.

Even if a witness denies such bias or partiality, counter-evidence remains admissible in the court proceedings.

Note

Juries don't see written documents

If mention something that is not in the written evidence will be provided with exhibits.

Cannot sit in the court before the they are called to give their evidence

Evidence in chief = The evidence given by a witness for the party who called him

Questioning should focus on the facts

Non-leading - questions that are about things that have been established

Fear = reasonable doubt + fairness + other measures possible ?

Where an offences incorporates all of the other elements it can be reduced to other offences.