To What Extent Are Witnesses Assisted and Protected by the Laws of Evidence - Coursework Example

The Law of Evidence Introduction: In the matter of giving evidence, Section 53 of the Youth Justice and Criminal Evidence Act holds that all witnesses are competent to give evidence unless the person is unable to understand the questions put to him or unable to give answers that are understood, or the person is under the age of fourteen. The competence of the witnesses to give testimony is to be determined and he or she is to be sworn in. The common law test is to be applied, to determine whether the witness is competent to be sworn in. A witness under the age of 14 may also be able to testify and may be allowed to provide unsworn evidence, provided there is some understanding and fear of deity and “the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth…”1 The finding made by a trial judge on the competence of the witness based upon the criteria laid out in the case of R v Hayes is dependent upon the discretion of the trial judge, who also determines whether a mentally disabled person is competent enough to testify in a trail2. The case of Sed v R3 involved an old woman with Alzheimer’s disease who often spoke in a manner that did not make much sense and sometimes did not appear to understand questions clearly. The competence of the witness under Section 53 of the YJCE was questioned by the defense, however the Court held that the reasoning of the trial Judge was correct in that he had discovered that the witness was not lucid at all times, but that it was not necessary for her to be so. Rather she demonstrated an understanding of simple questions and was able to respond lucidly on occasion and these could form the basis to determine that she was competent as a witness. However, even when a witness is found to be competent, that does not mean he can be compelled to testify at a trial. As stated by Murphy, “A witness is said to be compellable if he is not only competent but may lawfully be required by the Court , under sanction of penalty as a contemnor, to give his evidence.”4 In general the spouse of an accused will not be viewed as a competent witness due to the bond between the two and may not be compelled to give evidence. Cross examination about prior sexual history: One of the major issues that has proved contentious in witness protection is in trials for sexual offences, where several female witnesses were inhibited by the existing rules that required the former sexual history of the witnesses to be brought before the Courts. In a special report published by the Home Department on these kinds of witnesses, it was pointed out that the admissibility of evidence pertaining to prior sexual history was likely to be a factor in the withdrawal of many cases.5 The Report specifically stated that many women who report a rape to the police and then subsequently withdraw their complaints is because they are “deterred by the prospect of cross examination in public on their previous sexual history.”6 The reasons for this which were cited in the Report were that existing myths and stereotypes about female sexuality were likely to be prejudicial to the interests of the complainants. Furthermore it also constituted a violation of her privacy. The Heilbron Committee report stated that the introduction of evidence about prior sexual history of the complainant caused humiliation and distress sot the complainant and was also “inimical to the fair trial of the essential issues.”7 The credibility of women has been questioned in past decades and Denike has stated that all criminal cases involving the offense of rape were conducted under an aura of suspicion of women8. Sue Lees carried out an analysis of 32 trials that were conducted in 1993 and noted that questions that were asked of complainants about their previous sexual history were mostly irrelevant.9 According to Thomas, all consensual sexual activity with a child under 13 may be defined as Rape.10 Therefore if intercourse occurs, it amounts to statutory rape. He has pointed out that previous sexual history of the victim was a factor taken into account in trials for sexual offences, as per Section 2 of the Sexual Offences Act of 197611. But Section 41 of the Youth Justice and Criminal Evidence Act of 2000 has since repealed this and applies specifically to cases of rape. This section places limitations on the extent to which the previous sexual history of victims may be examined at trials and therefore a witness may not be asked any direct question about their past history unless it is specific and relevant to the specific allegation made by the victim. This exclusionary rule applies only in the case of sexual behavior. The probative question: The admissibility of evidence is governed by Sections 11, 12 and 13 of the Civil Evidence Act, which emphasizes that evidence must be relevant before it will be admissible. Questioning witnesses about prior conduct is equivalent to evidence of character, which is normally considered irrelevant in a civil action if it is nor probative of an issue12 unless the question of defamation arises.13 For example, in the case of Scott v Sampson14, the Court refused to receive evidence of specific acts of misconduct of the plaintiff. According to Cave J, both the principle and the authorities appear to be against admission of such evidence because it would in effect “throw upon the Plaintiff the difficulty of showing a uniform propriety of conduct during his whole life….”15 Section 74(1) of the criminal Evidence Act of 1984 deals with previous convictions of persons other than the defendant, such as a Complainant. This section states that such evidence would be admissible only if they are relevant to the issue before the court. However, Section 78 also allows the judge the discretion to exclude such evidence if it would have such an adverse effect on the proceedings that it could prejudice the interests of the parties, in which case it may not be allowed. According to Tapper, the probative force of the evidence will be weighed on the basis of three factors: (a) the cogency of the evidence that is sought to be adduced (b) the strength of the inference that may be drawn from such evidence about the disposition of the party and (c) the relevance that such disposition has to the facts of the case.16 Therefore, section 41 of the YJCE attempts to overcome existing practice in the Courts which still allows evidence of formal sexual history to be admitted and could prejudice the case of a rape complainant. This provision aims to control such evidence more rigorously. However, there has been criticism of this provision, in that its parameters have been drawn too widely to make any significant impact17. In the case of R v Mukadi18 the complainant got into a car with a stranger and exchanged telephone numbers with him. This was equated by the Court to sexual behavior, although the evidence was excluded. However, when the case reached the Court of Appeal, the Court commented that a jury could have properly inferred that when a victim accepted a strange man’s invitation and got into his car, she would have expected some form of sexual activity to take place. Therefore in some instances, questioning on prior sexual activity could be relevant. For instance in the case of R v B19 the judge held that evidence pertaining to earlier complaints made by the plaintiff could be a relevant issue. The Court of Appeal held that the trial Court had been wrong to refuse to allow defendants to adduce evidence regarding the plaintiff’s prior complaints which had been proved to be false. However, in the case of R v C and B20, when the defense counsel sought to introduce evidence on former complaints made by the plaintiff solely on the basis that they were relevant to establish the credibility of the plaintiff, Section 41 was invoked, because such evidence cannot be adduced merely for the purpose of maligning or casting doubts upon witness credibility. Hence, while Section 41 of the YJCE attempts to address the question of prejudicial elements to rape complainants, the parameters may have been too widely established because there is still scope for such questioning to occur and there may not be effective protection granted to witnesses to encourage them to testify freely in Court. Vulnerable witnesses: All witnesses/complainants under the age of 16 would automatically qualify as vulnerable witnesses under section 16 of the Youth Justice and Criminal Evidence Act, since they are under 17 at the time of hearing21. A witness may also be designated vulnerable if in fear or distress22 or is providing evidence in a complaint of sexual offence.23 A witness may also be designated as an incapacitated witness due to mental disorders, impairment of intelligence or a physical disability.24 All such witnesses will be eligible for a Special measures Direction, where such witnesses who may be in a state of fear and terror or incapacitated for other reasons, may also be allowed to provide evidence on video25 at unspecified dates and times before the trial actually takes place, from behind a protective screen in the Court26 or over a live television link.27 The issue of a special measures direction may therefore be invaluable to a vulnerable witnesses and this is a favorable direction in the development of the law of evidence. Therefore the protection of witnesses is well ensured by the measures that have been introduced into the law as outlined above. This is also a measure that could be utilized in favor of a young witness who may be in a state of fear due to a sexual offence because it allows the victim to be shielded from direct contact or exposure to the plaintiff. The right to remain silent: The presumption of innocence is that “every man is presumed to be innocent until he is proven guilty” is the underlying principle of English criminal law.28 This means that an accused person will be deemed to be innocent until evidence has been produced to support a conclusion of guilty beyond a reasonable doubt. According to Cross and Tapper, the presumption of innocence means that “the prosecution is obliged to prove the case [against defendant in question] beyond a reasonable doubt.”29 A witness may be competent to testify in Court, however, this does not mean that he can be compelled to do so. The right to silence of an accused has long been an established principle of English law. This right to silence is associated with the presumption of innocence, whereby every man is presumed to be innocent until he has actually been proved to be guilty. Therefore, every accused person has the right to remain silent so that he or she does not incriminate himself/herself. Section 34(2) of the Criminal Justice and Public Order Act of 1994 therefore allows that where evidence is being given against a person accused of a crime, if the accused person fails to provide evidence to rebut the charges but instead chooses to remain silent, then an inference of guilt, then an adverse inference may be drawn on the accused’s silence. Section 34(2) mentioned above allows the Court or jury to draw “such inferences from the failure [to testify] as appear proper.” Section 35 of the CJPA further clarifies that when a witness has been judged to be aware of the fact that a stage has been reached where he can give evidence and he deliberately chooses not to do so , or refuses to answer any question with due cause, then an inference of guilt can be made. However, as spelt out in the case of R v Cowan, Gayle and Ricciardi,30 a defendant cannot be convicted solely on the basis of an adverse inference and other supporting evidence will be required. The adverse inference cannot form the sole basis upon which an accused is convicted. Therefore, these measures reveal that the rights of the defense are also well protected, because no person can be convicted without due process of law, no matter what the nature of his offence. English law therefore provides protection both to the accused and the defense. Bibliography * Cross, Rupert and Tapper, Colin, 1990. “Cross on Evidence” (7th edn) London”: Butterworths at pp 125 * Denike, M, 2000. “Sexual violence and fundamental justice: on the failure of equality reforms to justice proceedings.” Canadian Women’s Studies, 20(3): 151-159. * Feldman, David, 1966. “The Defendant’s rights under English law” Madison: University of Wisconsin Press at pp 104 * Hall R and Longstaff, L, 1999. “Sexism still part of the new rape law.” The Times July 13. * Home Office 1998. “Speaking up for Justice: report of the Interdepartmental working group on the treatment of vulnerable and intimidated witnesses in the Criminal Justice System” London: Home Office. * Heilbron Committee Report, 1975. “Report of the Advisory Group on the Law of Rape.” (Cmnd 6352) London” Stationary office, paras 89, 92 * Lees, Sue, 2002. “Carnal knowledge: rape on trail.” London: The Women’s Press * Murphy, P, 1995. “Murphy on evidence” (5th edn) London: Blackstone Press, at pp 411 * Thomas, Terry, 2005 (2nd edn) “Sex Offending and Society” Willan Publishing, * Tapper, Colin, 1995. “The erosion of Boardman v DPP” New Law Journal, 145 (6708) : 1223 Cases cited: * Cornwell v Myskow (1987) 2 All ER 504 * R v Hayes [1977] 2 ALL ER 288, per Lord Bridge at p.291 * R v Mukadi (2003) EWCA Crim 3765; (2004) Crim.L.R. 373 * R v B (2001) EWCA Crim 3042 * R v Cowan, Gayle and Ricciardi (1996) QB 373 * R v C and B (2003) EWCA Crim 29 * R v Bellamy (1985) 82 Cr App R 222 CA * Scott v Sampson (1882) 8 QBD 491 * Secretary of State for trade and industry v Coulthard (1997) 1 BCLC 329 * Sed v R [2004] EWCA Crim 1294 Read More