Michael Stockdale

Expert Evidence in Criminal Proceedings: Current challenges and opportunities

In its 2011 report Expert Evidence in Criminal Proceedings in England and Wales (Law Com No. 325), the Law Commission recommended that the admissibility of expert evidence in criminal proceedings should be governed by a new statutory regime comprising a new statutory reliability test in combination with codification and refinement of existing common law principles relating to ‘assistance’, ‘expertise’ and ‘impartiality’. The government declined to enact the Law Commission’s draft Bill due to a lack of certainty as to whether the additional costs incurred would be offset by savings. Instead the government invited the Criminal Procedure Rule Committee (CrimPRC) to consider amendments to the Criminal Procedure Rules (CrimPR) to introduce, as far as possible, the spirit of the Law Commission’s recommendations. The consequent amendments to CrimPR Part 33 (now CrimPR Part 19) in combination with the making of the new Practice Direction CrimPD 33A (now CrimPD 19A) by the Lord Chief Justice resulted in what he described in his 2014 Criminal Bar Association Kalisher Lecture as ‘a novel way of implementing an excellent Report’. This paper considers the possible evolution of the common law in light of these amendments, the challenges associated with adopting such a novel approach to reform and the potential opportunities for the improvement of expert evidence in criminal proceedings that the changes were intended to create.

Admissibility of Low Template DNA Evidence: R v Dlugosz; R v Pickering; R v MDS [2013] EWCA Crim 2

Concerns the decision of the Court of Appeal in R v Dlugosz; R v Pickering; R v MDS [2013] EWCA Crim 2 relating to the admissibility of evaluative opinion where DNA evidence lacks a statistical basis.

Legal Professional Privilege in Corporate Criminal Investigations: challenges and solutions in the modern age

This article considers two areas that arise in the context of corporate criminal investigations relating to claims of legal professional privilege: the extent to which litigation privilege may attach to communications made in the context of such investigations and the difficulty of identifying the client for the purposes of legal advice privilege. These issues are of particular significance where a company is or may be the subject of an investigation by specialist prosecuting authorities, such as the Serious Fraud Office. We identify the policy considerations justifying litigation privilege and whether they continue to explain the current ambit of the privilege. With particular reference to the extent to which the privilege is capable of attaching to communications made for the purpose of working towards a potential settlement, we consider how the constraints upon its ambit operate in the context of corporate criminal investigations. In relation to legal advice privilege, we demonstrate that it is possible to give a coherent explanation of the jurisprudence in this area which, while accepting that decisions are fact-specific, should enable corporations and the courts to identify the client within the corporation with a greater degree of confidence.

Non-conviction Bad Character Evidence and Directions to the Jury on Use to Show Propensity R v Mitchell [2016] UKSC 55

outskirts of the city where he was met by Molly. The pair of them drove to Holland to collect the drugs. Bianco drove back to Calais, dropping Molly off near Ostend in Belgium, then caught the ferry to Dover. At Bianco’s trial at Canterbury Crown Court, the trial judge refused to put the defence of duress to the jury, who subsequently returned a guilty verdict. Bianco appealed, unsuccessfully. The Court of Appeal held that the trial judge had correctly withdrawn the defence for two reasons: (i) Molly’s threat was too vague and (ii) Bianco had several opportunities to escape and/or contact the police – during the drive from Wolverhampton down to Dover; in France before he met up with Molly; and during the drive from Ostend to Calais. There are other principles underpinning the defence of duress that were not raised in the present case. They include:

Admissibility of Third Party Previous Convictions under PACE s. 74 R v Denham; R v Stansfield [2016] EWCA Crim 1048:

appellant’s conviction barely merits discussion. His account was in no measure believable, and the account of V in every measure was. Nevertheless, the admission of Brown’s conviction pursuant to s. 74, where some observers might feel that the judge was under a s. 78 duty to exclude it leaves a nagging feeling that its admission was unfair. The need for the criminal law to protect citizens could still have been met without compromising the ability of the accused to have his version of events weighed on its own merits, however unmeritorious that version was. The court in the present appeal considered (i) the weight of the evidence in totality, concluding that it had been overwhelming; (ii) the effect on the fairness to the appellant of the trial judge having admitted Brown’s conviction; (iii) that the judge did not err by refusing to exclude it; and then considered (iv) the safety of this appellant’s conviction, finding that it was safe. As regards (i) and (iv) the court was surely correct.

Admissibility of Evidence of Co-defendant’s Bad Character under s. 101(1)(e) Criminal Justice Act 2003: Irrelevance of Common Law Authorities R v Platt [2016] EWCA Crim 4

a murderer (Jogee; Ruddock at [95]) but if not he would be guilty of manslaughter (Jogee; Ruddock at [96]). These are questions for a jury to answer. Given that the appeal was dismissed on the basis of the law as it was before the decision of the Supreme Court in Jogee, the unsuccessful appellants may well apply to the Criminal Cases Review Commission to seek a referral back to the Court of Appeal.

Bad character evidence as evidence of identity: R v Richardson [2014] EWCA Crim 1785

where the value of the multiple hearsay must be ‘so high that the interests of justice require the earlier hearsay statement . . . to be admissible’, the court believed that ‘value’, for this purpose, probably meant ‘probative value’ and recognised that s. 121 ‘requires the judge to consider the issue of how reliable the statements appear to be’. Applying this approach in the context of Williams, the reliability of the statements made by S, certainly if admitted as second-hand hearsay, would not appear to be such as to justify the conclusion that the probative value of the hearsay evidence was sufficiently high that the interests of justice required its admission.

Revised Guidance on Good Character Directions: R v Hunter, Saruwu, Johnstone, Walker and Londsdale [2015] EWCA Crim 631

The Court of Appeal heard five appeals relating to good character directions in criminal proceedings. The facts of the cases were as follows.W was convicted of assault by penetration. He accepted that he had touched the complainant as alleged but claimed that he had been unable to form the requisite mens rea because he suffered from the sleep disorder known as ‘sexsomnia’. W had a number of historic convictions, mostly for offences of dishonesty but some for assault. Without giving prior notice to the court or the prosecution, W adduced evidence of these convictions at his trial. Because W had no sexual offence convictions, the recorder trying the case gave the jury the propensity limb of the good character direction. In relation to credibility, he pointed out that W had been of good character in the recent past. The recorder referred to good character evidence of which the jury was aware and made clear that the jury had to assess the impact, if any, that the convictions had upon W’s credibility. He indicated that the weight of the convictions was a matter for the jury, but emphasised that they were old convictions and that W had behaved well since then. W’s counsel had agreed with the judge’s approach. On appeal, W asserted that he had adduced evidence of his previous convictions in order that he could have a two-limb good character direction. W submitted that the fact that the prosecution had not applied to adduce evidence of his convictions meant that it had conceded that the convictions were not probative. Accordingly, although the recorder had been obliged to give a good character direction, he had left it to the jury to decide whether W was entitled to a credibility direction rather than deciding himself. He had invited the jury to hold the convictions against W in relation to the issue of credibility, even though they had no probative value and would not have been before the jury if W had not adduced them in evidence.

False allegations: the limitations of the ‘evidential basis test’: R v All-Hilly (Salaam David) [2014] EWCA Crim 1614

The appellant (S) was convicted of rape. Both the appellant and the complainant (C) were drug addicts and became acquainted at a Narcotics Anonymous meeting in 2011. C became attracted to S and a consensual sexual relationship between C and S commenced in November of that year. On the evening of 25 November 2013, C invited S to her home and the pair had consensual oral sex. Consensual anal intercourse followed, but this caused discomfort to C, at which point she told S to stop. S ignored C’s repeated protests and at one point even said to C, ‘I am anally raping you’. The defence argued that C consented to anal intercourse and had enjoyed it, but when this began to hurt C, S stopped on his own accord. The credibility of C, therefore, became vitally important in the jury’s assessment of whether C consented. The defence became aware, from C’s ABE (Achieving Best Evidence) interviews and via the proper disclosure process, that C had made a number of allegations of sexual assault against other men in the past, but that she had not pursued these allegations with the police. Counsel for S applied for leave to cross-examine C on the basis that C’s reluctance to pursue the complaints further created an inference that they were untrue. The trial judge refused on the basis of there being no evidence to suggest that the previous allegations were false. The judge indicated, however, that he would leave the matter open and hear further argument if need be. C’s evidence in chief took the form of edited ABE video interviews. The jury did not hear evidence of the previous allegations made by C against other men, but did hear brief reference of the fact that C had been abused in the past by her father. At trial, C repeated the claims of previous abuse by other men. This information had been tendered voluntarily during cross-examination and not, as argued by defence counsel, as representing evidence that was introduced as part of the prosecution’s case as presented to the jury. The defence renewed its application to cross-examine C, but failed once again on the basis of there being no evidence to prove the falsity of the allegations. Counsel for S argued that C’s reluctance to pursue previous complaints with the police clearly established an evidential basis for suggesting that the allegations were false. In this regard, they had substantial probative value in relation to C’s credibility and satisfied the leave requirement for cross-examination under the Criminal Justice Act 2003, s.100(1)(b). The refusal by the trial judge to permit cross-examination had, therefore, rendered the conviction unsafe.

The Admissibility of Footwear Impressions Obtained in Breach of PACE

Analysis of a case which may reveal either a policy or a practice of deliberately ignoring the provisions of s.61A of the Police and Criminal Evidence Act 1984 in order to enhance the ability of the police to investigate crime.