Witnesses giving evidence in court
- Evidence of bad character
- Bad character evidence: cross-examination of the defendant as to “credit” (credibility)
- Contaminated evidence
- Defendant who does not give evidence
- Bad character evidence: cross-examination of witnesses as to “credit” (credibility)
- Competence and compellability of witnesses
- Live links
1. When a witness is called to give evidence, s/he will be questioned first by the advocate representing the party calling them. This is the 'examination-in-chief', the object of which is to elicit from the witness all the facts supporting that party's case that are within the personal knowledge of that witness.
2. When giving evidence, witnesses may refresh their memory from documents provided certain conditions are met – see the section on Memory Refreshing in ‘Exceptions to the hearsay rule’.
3. 'Leading questions' (i.e. questions which invite a witness to give a particular response) should generally not be asked in examination-in-chief. There are a limited number of exceptions to this rule, such as questions on introductory matters or facts that are not in dispute, and the court may allow leading questions where it considers it in the interests of justice to do so.
4. All the evidence on which the prosecution wishes to rely must be called before the close of the prosecution case, as it will only be in exceptional circumstances that the prosecution may be allowed subsequently to call evidence. This should be borne in mind when you attend the trial: if you consider that there may have been an oversight, and that evidence intended to go before the court has not been introduced, you must inform the prosecuting advocate before, and not after, the close of the prosecution case.
5. After a witness has given evidence-in-chief, s/he may be cross-examined on behalf of the other parties, including any co-accused. If a witness has not said anything which damages the prosecution case, or with which your witnesses disagree, there may be no need to cross-examine the witness at all.
6. If there are no questions in cross-examination, the witness’s account is generally taken as unchallenged, and accepted.
7. After cross-examination, the party that called the witness may re-examine him/her, but must limit questions to clarify matters covered during cross-examination. Leading questions may not be asked. Re-examination will often be tactically disadvantageous and is not conducted routinely.
8. The court may recall a witness for further examination or cross-examination. In such circumstances, the parties have a right to cross-examine or re-examine.
9. Exceptionally, a party may be allowed to call evidence after it has closed its case to rebut evidence that was unforeseen.
Evidence of bad character
10. On the 15 December 2004, a fundamental change in the law of evidence relating to bad character was enacted under the Criminal Justice Act 2003 (CJA 2003). The CJA 2003 abolished the common law rules that had governed the admissibility of evidence of bad character1.
11. There is a firm distinction in the CJA 2003 between the evidence of bad character relating to any witness who is not the defendant (whether for the Crown or the defence), and that of the defendant.
- has to do with the alleged facts of the offence with which the defendant is charged, or
- is evidence of misconduct in connection with the investigation or prosecution of that offence.
13. Facts that are central to the offence itself cannot be evidence of bad character. Bad character evidence must instead be drawn from background evidence and evidence not going to the central set of facts, which may amount to evidence of bad character.
Bad character evidence: cross-examination of the defendant as to 'credit' (credibility)
14. Prior to the CJA 2003, the Crown could only introduce evidence of a defendant’s bad character if the defendant had previously raised relevant matters of bad character in evidence.
15. The CJA 2003 introduces a new framework setting out the circumstances in which evidence of a defendant’s bad character can now be adduced 4. These circumstances are exceptions to the general rule that the prosecution may not adduce evidence of the defendant’s bad character (other than that relating to the offence charged) nor of the defendant’s propensity to act in a particular way, even if that is relevant. The common law rules governing the admissibility of evidence of bad character, except the rule relating to general reputation 5, are abolished.
16. Under section 101(1) CJA 2003, evidence of the defendant’s bad character is admissible without leave of the court (provided notice has been given to the court and each other party) “if, but only if:
- all parties to the proceedings agree to the evidence being admissible;
- the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it;
- it is important explanatory evidence 6;
- it is relevant to an important matter in issue between the defendant and the prosecution 7, 8;
- it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant 9;
- it is evidence to correct a false impression given by the defendant 10, 11; or
- the defendant has made an attack on another person’s character”.
17. Section 101(3) CJA 2003 allows the court not to admit evidence under (d) or (g) above if on an application by the defendant to exclude that evidence, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. On such an application, the court must have regard, in particular, to the length of time between the matters to which the evidence relates and the matters that form the subject of the offence charged.
18. A defendant’s bad character is admissible if the defendant attacks another person’s character. This other person does not have to be the accused or a prosecution witness; it can be any person.
19. A person attacks another person’s character if he adduces evidence to the effect that the other person:
- has committed an offence (regardless of whether it is the same or a different offence to the one with which the defendant is charged, or whether that other person was prosecuted for the offence), or
- has behaved, or is disposed to behave, in a reprehensible way.
20. If the prosecution intends to adduce evidence of the defendant’s bad character, notice must be given to the court and all other parties. A defendant may apply to exclude evidence of his/her bad character12.
21. Convictions under the law of any of any country outside England and Wales can be admitted to the same extent as convictions in England and Wales provided that the offence would also have been an offence in England and Wales
22. If evidence of bad character is admitted on grounds (c) - (g) of paragraph 16 above and, at any time after the close of the prosecution case, the court is satisfied that the evidence is contaminated such that a conviction for the offence would be unsafe, the court must either direct the jury to acquit the defendant or, if it considers that there ought to be a retrial, discharge the jury 13.
23. A person’s evidence is 'contaminated' if the evidence is false or misleading in any respect, or is different from what it would otherwise have been, and the evidence arises:
- as a result of an agreement or understanding between that person and one or more others, or
- as a result of the person being aware of anything alleged by one or more other persons whose evidence may be, or has been, given in the proceedings.
24. These provisions apply 'to a defendant’s trial before a judge and jury'; no equivalent power exists in relation to summary trials.
Defendant who does not give evidence
25. Where the defendant fails to give evidence in court, the court may draw such inferences as appear proper in determining whether the accused is guilty of the offence charged. The court cannot, however, convict the accused solely on the basis of an inference drawn from a failure to give evidence.
26. At the conclusion of the prosecution case, the court must establish that the defendant understands that the stage has been reached at which evidence can be given for the defence; that s/he can give evidence; and that failure to do so will allow the court to draw such inferences as appear proper from a failure to give evidence or refusal to answer questions without good cause.
27. Once a defendant has been sworn in, any refusal to answer questions will be treated as without good cause unless:
- s/he is entitled to refuse to answer questions by virtue of an enactment or on the grounds of privilege; or
- the court excuses him/her from answering 14.
28. An adverse inference may also be drawn from a defendant's silence before trial. Evidence of the defendant’s silence should be called by the prosecution as part of its case if the court is to be invited to draw such an inference 15.
Bad character evidence: cross-examination of witnesses as to 'credit' (credibility)
29. The CJA 2003 allows cross-examination as to the character of non-defendant witnesses. Section 100 introduces a statutory framework under which evidence of a witness’s bad character may be admissible.
30. The court will either grant or refuse leave based on its judgment as to whether evidence of the bad character of a non-defendant witness is admissible, i.e. if:
- it is important explanatory evidence 16;
- it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole (see below); or
- all parties to the proceedings agree to the evidence being admitted.
31. If all parties to the proceedings agree to the evidence being admitted, leave of the court is not required. If leave is required, the advocate who wishes to put questions to the non-defendant witness is under a duty to make the appropriate application on notice. This can be dealt with either before the trial starts or during the trial.
32. When assessing whether evidence has substantial probative value, a court will assume that the evidence is true 17.
33. In assessing the probative value of evidence, the court must have regard to the following factors, to ensure that the parties have the opportunity to adduce evidence of bad character if it is important enough to do so 18:
- the nature and number of the events, or other things, to which the evidence relates. For example, if a witness has one conviction for fare evasion, in determining whether to allow evidence of that conviction to be adduced, the court must have regard to the fact that this conviction bears no relation to a health and safety prosecution, save for it being a mild example of dishonesty;
- when those events or things are alleged to have happened or existed, i.e. how long ago;
- the nature and extent of the similarities (or otherwise) between each of the alleged instances of misconduct; and
- where the evidence is of a person’s misconduct, and it is suggested that that person is also responsible for the misconduct charged, and the identity of the person responsible for the misconduct charges is disputed.
34. A party wishing to introduce evidence of bad character must either make an application to the Court (non-defendant's bad character) or give notice to the Court and each party that it wants to introduce such evidence (defendant's bad character) 19. A party may oppose an application to introduce a non-defendant's bad character by giving notice in writing to the court and other parties within 14 days of receipt of the application. A party may object to a notice to introduce a defendant's bad character by serving an application on the Court and each party not more than 14 days after service of the notice.
35. In summary, the first issue is whether there has been an attempt to adduce evidence of bad character. If there has been, does the evidence of bad character explain a substantially important matter in issue? If it does, then the court should grant leave. If it does not, then the evidence of bad character will not be admitted. The advocate should therefore consider the value of the evidence s/he wishes to adduce in this regard.
Competence and compellability of witnesses
36. Neither the defendant nor his/her spouse or civil partner can be compelled, in health and safety prosecutions, to give evidence for the prosecution20.
37. It is likely that a director of a company can be compelled to give evidence in the trial of the company or a fellow director, but only in exceptional cases should such evidence be relied on21.
38. A live link is defined by section 56(2) CJA 2003 as a live television link or other arrangement by which a witness, while at a place in the United Kingdom which is outside the building where the proceedings are being held, is able to see and hear a person at the place where the proceedings are being held, and vice versa.
39. The CJA 2003 sets out the circumstances in which a witness can give evidence through a live link 22. The provisions state that any person (other than the accused) can give evidence through a live link if the court directs. Witnesses are generally required to attend the court in person. Section 51, and associated provisions of the Criminal Justice Act 2003, enable the Court to allow witnesses (other than the defendant) to give evidence by a live link from any suitable facility (it is not limited to those in a court building) if the court is satisfied that it is "in the interests of the efficient and effective administration of justice" (section 51(4)(a)) and where the necessary facilities are already available. In deciding whether to give a direction under this section the court must consider all the circumstances of the case (section 51(6)).
40. A direction for evidence to be given by live link can be given on application of a party or on the court’s own motion. Such a direction will not be given unless the court is satisfied that it is in the interests of justice for evidence to be given this way. A court will consider matters such as the availability of the witness, the need for the witness to attend in person, and the importance of the witness’s evidence to the proceedings in deciding whether to allow such evidence.
41. If a direction is given permitting a witness to give evidence through a live link, then the evidence of the witness concerned will only be able to be given by live link. The direction as to the live link evidence may be rescinded by the court if it appears to be in the interests of justice to do so.
42. Facilities for the giving of live link evidence may not be available at all magistrates’ courts. Should magistrates decide that evidence is to be given by way of live link but suitable facilities are not available at that court, they may order the whole or any part of the proceedings to be conducted at an alternative venue where such facilities are available.
43. Where evidence is given through a live link, any jury must be directed to give the same weight to the evidence as if it had been given by the witness in court.
- Section 99 CJA 2003. Back to reference of footnote 1
- Section 98 CJA 2003. Back to the reference of footnote 2
- 'Misconduct’ is defined as 'the commission of an offence or other reprehensible behaviour'. ‘Reprehensible’ is not defined, but could include cautions,warnings, reprimands etc. Back to the reference of footnote 3
- CJA 2003 s101. Back to reference of footnote 4
- CJA 2003 s99 – a person’s reputation remains admissible for the purposes of proving his bad character. Back to reference of footnote 5
- In relation to the defendant’s bad character, evidence is important explanatory evidence if without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and its value for understanding the case as a whole is substantial - section 102 CJA 2003. Back to reference of footnote 6
- Section 103(6) CJA 2003 - Only prosecution evidence is admissible under (d). Back to reference of footnote 7
- See section 103(1) CJA 2003 for what is meant by ‘matter in issue’, and subsequently sections 103(2)-(4) for how ‘propensity to be untruthful’ may be proved. Back to the reference of footnote 8
- See section 104 CJA 2003 for detail as to a ‘matter in issue between the defendant and a co-defendant’. Back to reference of footnote 9
- As per section 105(1) CJA 2003, the defendant gives a ‘false impression’ if he is responsible for the making of an express or implied assertion that is likely to give the court or jury a false or misleading impression about the defendant. Back to reference of footnote 10
- Section 105(6) CJA 2003: Evidence of bad character will be admissible under (f) above only to the extent necessary to correct the misleading impression. Only prosecution evidence is admissible under (f). Back to reference of footnote 11
- Parts 5 (Forms) and 21 (Evidence of bad character) Criminal Procedure Rules 2015; See Part 21 CPR for the time limits applying to such provisions. Back to reference of footnote 12
- See section 107 CJA 2003. Back to reference of footnote 13
- Criminal Justice and Public Order Act 1994, section 35(5). Back to reference of footnote 14
- Criminal Justice and Public Order Act 1994, s.34(3). See ‘Collecting witness evidence’ for a discussion of s.34.Back to the reference of footnote 15
- Evidence of bad character of a non-defendant witness is important explanatory evidence if, without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case and its value for understanding the case as a whole is substantial – section 100(2) CJA 2003. Back to reference of footnote 16
- A court need not assume that the evidence is true if it takes the view that, on the basis of the materials before it (including any evidence it decides to hear on the matter), no court or jury could reasonably find it to be true. Back to reference of footnote 17
- Section 100(3) CJA 2003. Back to the reference of footnote 18
- Parts 5 (Forms) and 21 (Evidence of bad character) Criminal Procedure Rules 2015; See Part 21 CPR for the time limits applying to such provisions. Back to reference of footnote 19
- Section 80(2A) Police and Criminal Evidence Act 1984 (as amended). Back to reference of footnote 20
- See Collecting witness evidence – Witness statements for more information on this situation. Back to reference of footnote 21
- CJA 2003, s.51. Back to reference of footnote 22
- Youth Justice and Criminal Evidence Act 1999. Back to reference of footnote 23