Roderick
Bagshaw
B.C.L.
Evidence
Michaelmas
2000
WitnessesM2000 – Lecture 1 –
Competence,
Compellability, Cross-Examination and Corroboration
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Introduction: "The principal items of judicial evidence are the testimony, admissible hearsay assertions, documents, things and facts which a court will accept as evidence of the facts in issue." Cross & Wilkins, Outline of the Law of Evidence (7th ed., 1996).
1. Competence
A witness is competent if the court will permit him or her to give relevant oral evidence in court.
Competence to give unsworn evidence distinguished from competence to take an oath.
Practical sphere of operation: Children and people with limited mental abilities. Children, see Week 2.
2. Compellability
A witness is compellable if he or she is subject to the power of the court to order him or her to attend and answer.
Forms of compulsion:
Civil – witness summons: C.P.R. 34
Crown Court (criminal) – witness summons: Criminal Procedure (Attendance of Witnesses) Act 1965
Magistrates’ Court – witness summons: Magistrates’ Court Act 1980, s. 97
R v. Reading JJ. ex p. Berkshire C.C. [1996] 1 Cr.App.R. 239 (burden)
Challenges to compulsory process:
R. v. Lewes JJ. ex p. Sec .of State for the Home Dept. [1972] 1 Q.B. 232 ([1973] A.C. 388) (immunity)
R. v. Baines [1909] 1 K.B. 258 (abuse of process); Morgan v. Morgan [1977] Fam. 122 (oppression)
3. Cross-Examination
R. v. Nagrecha [1997] 2 Cr.App.R. 401, C.A.
4. Corroboration
"Corroboration … is nothing other than evidence which "confirms" or "supports" or "strengthens" other evidence. … It is, in short, evidence which renders other evidence more probable." per Lord Simon in D.P.P. v. Kilbourne [1973] A.C. 729, at 758.
Corroboration directions as they were given before 1994 were a "tortuous exercise" which "juries must have found more bewildering than illuminating." (R. v. Makanjuola [1995] 1 W.L.R. 1348, 1351).
Problems – (a) complexity of direction – what can and cannot be corroboration; (b) categories where direction required prone to penumbra – who is an accomplice? (c) categories based on unacceptable stereotypes – esp. complainants in sexual cases.
Reform: Criminal Justice Act 1988, s. 34(2) (unsworn evidence of children)
Criminal Justice and Public Order Act 1994, ss. 32 & 33 (accomplices, complainants)
R. v. Makanjuola [1995] 1 W.L.R. 1348 – preventing a renaissance
Residual categories: Treason Act 1795, s. 1; Perjury Act 1911, s. 13; Road Traffic Regulation Act 1984, s. 89(2); Identification? – See week 4
5. The Shift from Oral Primacy
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Civil cases |
control over evidence, (C.P.R. 32.1) witness statements, (C.P.R. 32.4, 32.5, 32.6) |
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Criminal cases |
committal reforms (Criminal Procedure and Investigations Act 1996, Schedule 2) video-tape evidence (Youth Justice and Criminal Evidence Act 1999 – see week 2) |
Subsequent Lectures
2. Children; 3. Victims of Sex
Offences; 4. Eyewitness Identification
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MOVE to |
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