The Credibility of Written Evidence in the Criminal Trial in England and Wales

1. The Credibility of Written Evidence in the Criminal Trial in England and Wales Professor Jacqueline HodgsonSchool of Law, University of Warwick, UK

2. E&W as an adversarial model • No pre-trial judicial investigation • Parties responsible for evidence gathering and presentation • Importance of opportunity to challenge the evidence of each ‘side’ • Trial is the forum for testing credibility and reliability of evidence

3. Contrast this with inquisitorial model • Pre-trial judicial supervision of investigation • Judicial authority responsible for evidence gathering (with a relatively subordinate defence role) • Each ‘side’ may propose investigation and other side can participate • Pre-trial a form of pre-judgment where relevance, credibility and reliability of evidence determined

4. The importance of process • Evidence gathered by partisan parties, not neutral judicial officer • This may affect reliability and so opportunity to challenge live evidence crucial • Will want to verify manner in which evidence gathered as well as factual content • Rules re pre-trial investigation (eg PACE Codes of Practice) and evidence rules re court (eg ss76, 78 PACE)

5. Oral Evidence • Inquisitorial model relies more on the case file (with opportunity for pre-trial participation and challenging of evidence by the parties) • Live oral evidence is crucial to the adversarial model (as well as physical, documentary and forensic evidence) • Evidence selected by the parties; opportunity for verification through cross-examination (though this is controlled legally and ethically) • In practice, much evidence is accepted in written form as (i) agreed evidence in contested trial (ii) as agreed evidence through guilty plea.

6. Oral evidence & Cross-Examination • Is cross-examination effective? Psychologists suggest that witnesses perform best when recalling recent events with minimal prompting, through open-ended narrative and in a stress-free environment. • Information is damaged at memory acquisition, storage and retrieval. • Reliable testimony may be better achieved through pre-trial early judicial questioning than cross-examination months later at trial

7. (I) Agreed Evidence • Much evidence is agreed by the parties in advance of trial under s9 and 10(1) Criminal Justice Act 1967 (witness statements & formal admissions) – provided the evidence would have been admitted as oral testimony. • This respects principle that parties select and present evidence, and have an opportunity to challenge its credibility, as this evidence is agreed between the parties in advance.

8. (II) Guilty Pleas • Written evidence, agreed through the guilty plea, is central in the vast majority of cases. • Over 1.5 million cases in magistrates’ courts • 94,000 in Crown Court, of which 16,000 tried by jury • Is the promise of witnesses being called and a jury trial enough?

9. Guilty pleas and the adversarial ideal • Crown Court trials represent a minority procedure, but some argue still important as the rules of evidence potentially shape pre-trial investigation (eg police process of evidence gathering; CPS decision to prosecute; defendant’s decision whether to plead guilty) • Others say undermines proper adversarial procedure. Case pressures mean forego opportunity to challenge evidence. How know what is unreliable until test it out? May be factually true but procedurally flawed (eg statement obtained under pressure) • Is trial just about truth or also procedural integrity?

10. (III) Hearsay evidence • Something a witness did not perceive with her own unaided senses (eg Ernesto told me) – prima facie inadmissible • Why? Procedural unfairness. Not susceptible to challenge and testing (What we would now call, the right to confrontation under Art 6(3)(d) ECHR)“It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.”TepervR [1952] AC 480, 486 per Lord Normand • Cf Inquisitorial model. Nor does it have the benefits of a statement obtained through pre-trial judicial questioning.

11. Criminal Justice Act 2003 • Exceptions to rule against admitting hearsay – where witness unavailable through death, unfitness, cannot be in UK, disappeared, fear. Provided that evidence would have been admitted orally; witness properly identified; proponent of evidence not responsible for witness’ absence • Business documents. • Judicial discretion guided by 9 principles to determine whether in interests of justice under s.114(2) and other existing considerations (eg probative value under s.126; admissibility under s.78 PACE)

12. Common Law Exceptions • 8 common law exceptions retained, including confessions and expert evidence. (Also public information, reputation as to character, reputation or family tradition, res gestae, admissions by agents, common enterprise) • Experts may include information generated by others (other expertise in the field); report admissible without oral testimony. (NB can exclude if not in interests of justice eg includes untested opinion). What if the other party wants to cross-examine?

13. ECtHR & Hearsay • ECtHR case Al-Khawaja and Taheryv UK held that unfair to base conviction solely or to a decisive degree on the depositions of a person whom D has had no opportunity to examine during the investigation or at trial. • Supreme Court rejects this test, claiming CJA 2003 addresses this risk. (But Tahery was dealt with under 2003 Act (witness absent through fear) and court ruled that not unfair to admit as evidence could be challenged through other testimony in rebuttal.

14. Inconsistent Statements and Confessions • If admit making statement that is inconsistent with oral evidence, admissible. • Previous consistent statements may strengthen probity • Confession evidence admissible under s.76 PACE • Two other situations we might consider, where oral testimony that can be subject to cross-examination is limited: anonymous and vulnerable witnesses

15. (I) PII & Anonymous Witnesses • The English Courts have upheld the right of the accused to confront those testifying against her. Other measures that not written evidence, but may undermine this right. • In R v Davis [2008] UKHL 36, the House of Lords overturned a conviction where witnesses fearing violent reprisals had testified behind a screen, voices altered, but judge and jury could see them. • It prevented D from investigating the character, motives or reliability of the witness. Identification is essential to cross-examination, especially where credibility is in issue. (Where police informants used, this may be especially important). • Coroners and Justice Act 2009 reversed this and now authorises a judge to make a witness anonymity order for a testifying witness, where in the interests of justice • Special counsel in PII hearings of limited benefit to accused.

16. (II) Vulnerable Witnesses • Not written evidence, but perhaps undermines the principles of immediacy and orality to some degree – but still in the interest of securing reliable evidence, albeit by adapted means • Children, adult complainants in sexual offences, intimidated witnesses. • Witness may testify behind a screen, by video-link, by pre-recorded examination and cross-examination