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An Attempt to Update the Law of Evidence*

Published online by Cambridge University Press:  12 February 2016

Rupert Cross
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Extract

When Dean Feller did me the honour of inviting me to give the Lionel Cohen lecture for 1973 one of the subjects I submitted, and the one accepted by him, was “Reforming the Law of Evidence—The English Experience”. For me those were the halcyon days before the publication of the 11th Report of the Criminal Law Revision Committee; the law of evidence in civil cases had been modernised by the Civil Evidence Acts of 1968 and 1972, and I pictured the draft Criminal Evidence Bill annexed to the 11th Report going merrily through Parliament, if not without some protest and amendment, at least with celerity and the certitude of becoming law. Alas, this was not to be. To describe the reception of the Report as “unenthusiastic” would be the understatement of the century; but, although I must confess to considerable pessimism concerning the questions when and to what extent the draft Bill will become law in England, I am pleased that it should continue to be the subject of my lecture, although the title of the latter had perforce to undergo some change in order to cater for the fact that the English experience of reforming the law of evidence is too incomplete to allow for profitable discussion.

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Articles
Information
Israel Law Review , Volume 9 , Issue 1 , January 1974 , pp. 1 - 23
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1974

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References

1 34 L. Ed. 2d no. 5.

2 Cmnd. 4991, 1972.

3 Cmnd. 2964, 1966.

4 Cmnd. 3391, 1967.

5 Cmnd. 3472, 1967.

6 Cmnd. 4489, 1970.

7 Goldberg, J. in Murphy v. Waterfront Commission of New York Harbour 378 U.S. 52 at p. 55.Google Scholar

8 Section 3 infra.

9 See Goldberg in Murphy's case supra, and Griswold, , The Fifth Amendment Today, p. 7.Google Scholar

10 Criminal Evidence Act, 1898 sec. 1(h).

11 The authorities are reviewed in R. v. Mutch, [1973] 1 All E.R. 178 and R. v. Sparrow, [1973] 1 W.L.R. 488; the co-accused's right to comment is established by R. v. Wickham, Ferrara and Bean (1971) 55 Cr. App. Rep. 199.

12 As in R. v. Corrie (1904) 20 T.L.R. 365.

13 R. v. Sparrow supra.

14 R. v. Mutch supra.

15 R. v. Adams (1957); extracts from the summing-up in this cause célèbre are given in Williams, Glanville, The Proof of Guilt (3rd ed.) 60.Google Scholar See also Sybil Bedford, The Best We Can Do. Had the draft Bill been in force at the time of Dr. Adams' trial, it would not have been proper for the judge to have directed the jury that they might draw adverse inferences from the accused's failure to testify.

16 R. v. Nodder (1937); Proof of Guilt 59.

17 R. v. Bathurst, [1968] 2 Q.B. 99.

18 R. v. Sparrow, [1973] 1 W.L.R. at p. 493.

19 “Since the first decade of this century, there have been many cases in which this court and its predecessor have had to rule whether comments about the accused's silence from the witness box or a failure to disclose a defence when questioned by the police were permissible, and as Salmon L. J. pointed out in R. v. Sullivan (51 Cr. App. Rep. 102 at p. 105): ‘The line dividing what may be said and what may not be said is a very fine one and it is perhaps doubtful whether in a case like the present it would be even perceptible to the members of any ordinary jury’. Nevertheless, as long as the law recognises the so-called right to silence, judges must keep their comments on the correct side of the line, even though the differences between what is permissible and what is not may have little significance for many jurors” (per Lawton, L. J. in R. v. Mutch, [1973] 1 All E.R. at p. 181).Google Scholar

20 “If an accused in a criminal action does not testify, [the judge and] counsel may comment upon accused's failure to testify, and the trier of fact may draw all reasonable inferences therefrom”. The words in square brackets are omitted from r. 23(4) of the Uniform Rules.

21 380 U.S. 609.

22 U.S. v. Woodmansee 354 Fed. 2d 235.

23 See section 3 infra.

24 Works (Bowring edition) vol. vii, p. 27.

25 [1953] 1 All E.R. 872.

26 [1973] 1 All E.R. 440.

27 [1934] 2 K.B. 408 at p. 414.

28 In a jurisdiction in which there are provisions like the English Judges' Rules under which suspects must be cautioned in terms telling them that they are not obliged to say anything, provision would of course have to be made for a modification of the practice. This matter is dealt with in paras. 43–7 of the Report.

29 Letter to The Times, July 3, 1972.

30 Para. 35.

31 A full history of the trial within the trial has yet to be written. Some of the pre-1898 decisions with regard to the admissibility of confessions appear to have been made in the presence of the jury.

32 King v. The Queen, [1969] 1 A.C. 304 at p 319.

33 “Torture or inhuman or degrading treatment” are the words used in the European Convention on Human Rights.

34 The report of the Commission recommended the placing of the burden of proving torture or inhuman or degrading treatment on the accused, and the Northern Ireland (Emergency Provisions) Bill was drafted accordingly. Placing the burden of proof on the accused was something which could only be justified, if at all, by a state of emergency, and, as a member of the Commission, I must confess to some pleasure at the fact that Parliament felt able to apply the ordinary principle that, once an issue has been raised by the evidence, the burden of proof should be borne by the prosecution. This principle is consistently applied in the 11th Report of the Criminal Law Revision Committee (paras. 137–42).

35 The proposal concerning the magistrate stems from the Indian Evidence Act, 1872. It is embodied in the proposed Ghana Rules, but I understand that they have been amended so as to provide for interrogation before an independent person chosen by the accused. This was due to the insufficiency of magistrates in parts of Ghana. A further objection is that the proposal for interrogation before a magistrate might have the effect of making it appear that the judiciary participates in the process of investigation. It is open to question whether the proposal for interrogation before an independent person is practicable. Will such a person always be readily available? What if the suspect objects to all those who are available?

36 See the beginning of section 2 of this article for this clause.

37 Criminal Procedure Law, 1965 sec. 146 (19 L.S.I. 158): “Where an accused has chosen to testify, he shall not be asked in cross-examination any question relating to his previous convictions, unless he has testified to his good character or submitted other evidence to that effect either in his own case or on cross-examination of witnesses for the prosecution” (translation as in the American series of Foreign Penal Codes). I have set the section out for the benefit of non-Israeli readers and for the sake of comparison with the corresponding provision of the American Model Code.

38 “If an accused who testifies at the trial introduces no evidence for the sole purpose of supporting his credibility, no evidence concerning his commission or conviction of crime shall, for the sole purpose of impairing his credibility, be elicited on his cross-examination or be otherwise introduced against him” (Model Code r. 106(3)). “Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility” (Uniform Rules r. 21).

39 Selvey v. Director of Public Prosecutions, [1970] A.C. 304.

40 Under sec. 129(5) (c) of the Ghana Criminal Procedure Code 1960, an accused who testifies is liable to be cross-examined on his previous convictions when “the nature or conduct of the defence is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence”. Both in Ghana and under the English draft Bill (clause 7) an accused who adduces or elicits evidence of good character is liable to cross-examination on his previous convictions.

41 For a recent example of insistence on the distinction by the English Court of Appeal see R. v. Vickers [1972] Crim.L.R. 101.

42 It is not so defensible when applied to the victim as a witness in a criminal case, or to the parties in civil proceedings. The distinction antedated the competence of parties and persons interested and was assumed, without, so far as I am aware, any discussion, to be applicable to parties when testifying in civil suits, and to the victim and accused when testifying in criminal cases.

43 In practice the usual effect of cross-examination to credit is no doubt to lead the tribunal of fact to conclude that it would be unsafe to act on the testimony rather than to be convinced that it would be proper to act on the contradictory, but the soundness of the distinction under consideration must be tested on the assumption that the cross-examination achieves everything it set out to achieve.

44 All three rules are frequently subsumed under the rule against hearsay (see for example 13th Report of the Law Reform Committee para. 5).

45 Clause 32(3) of the English draft Bill.

46 Ibid. clause 31(5). Provision is made for the reception of records which frequently consist of hearsay upon hearsay in clauses 34 and 35.

47 Clause 32(1).

48 Clause 32(4).

49 A further objection to the Model Code which can also be made against the Uniform and Federal Rules is the existence of sub-clauses under which hearsay declarations may be proved in the absence of the maker, although he is available. The examination-in-chief of a witness is often as revealing as the cross-examination. This is why sec. 2(2) of the English Civil Evidence Act, 1968 provides that the previous consistent statements of a witness shall only be admissible with the leave of the court which shall not in general be given before the end of the examination-in-chief.

50 R. 803(24); r. 804(6).

51 Patel v. Comptroller General of Customs, [1966] A.C. 356.

52 Uniform Rules r. 63(13); Federal Rules r. 803(6).

53 Clause 31 (1) (c) (iv).

54 Gillie v. Posho Ltd. [1939] 2 All E.R. 196.

55 Clause 33(1).

56 This is done by clause 39 of the English draft Bill.

57 (1968) 52 Cr. App. Rep. 80.

58 G had neither checked the document nor seen C. write the number down. It seems that in South Africa G. could have refreshed his memory with the aid of the note provided C. swore that he wrote down the number dictated by G. (R. v. O'Linn 1960 (1) S.A. 545).

59 Clause 31(6).

60 Clause 2(4). The American Model Code, Uniform Rules and Federal Rules are to the same effect as are the proposed Ghana Rules of evidence.

61 Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd., [1964] A.C. 465 at p. 516.