Critical comments

Right to silence

- M. Redmayne, ‘English warnings (2008)’

o The direction under s35 is complex

o Silence creates suspicion

o An innocent individual would want to give evidence at trial

o Only the guilty will stand to lose more by giving evidence, should invite jury to draw
adverse inference

- another matter in contention, status of silence at interview due to legal advice. The law is
not settled here. There are two schools of thought:

o R v Betts and Hall: genuine reliance – relied on legal advice, adverse inference
cannot be drawn

o R v Beckles: reasonable reliance – must be existence of good reasons for the advice

o There is no third case confirming either case to follow

Character evidence

- No definition for reprehensible behaviour. Renda says immoral conduct but there is no
definition by Parliament. Lack of definition can cause unpredictability in the outcome

o RvP

o R v D(N)

- Gateway D has been expanded beyond Parliament’s intention

o Current scope – s103(1)(a) and (b)

o New – adduce bad character to rebut defence raised by the defendant (R v Hay
(2017))

- Interpretation by Campbell on s103(1)(b) is too narrow. Consequence: it becomes

o Peter Mirfield, Character, Credibility and Truthfulness (2008)

- Gateway G is too open-ended. “Attack” is defined too broadly and occurs rather easily

o The attack need not be something said in trial. It can even be something said during
interview as well

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 o Once attack is established, the defendant’s bad character can be adduced in court

- The case of Hay (2017) has been seen during the Makin era, whereby similar fact evidence
was adduced to rebut various defences raised by the defendant. This can be said that the
courts are stretching beyond Parliament’s intention

ID evidence

- Breaching Code D doesn’t entail automatic exclusion of evidence, the Byrne decision causes
police to perceive that they don’t need to comply with Code D anymore. Lack of
enforceability

Hearsay

1. A6 criticism

- First critical comment on hearsay is the Grand Chamber’s chamber decision in Al-Khawaja
(2011) which suggested that the CJA 2003 on hearsay is compatible with A6(3)(d) (right to
confrontation)

- This would suggest that a defendant’s right under A6 is not being enforced adequately

- There has been suggestions (Hoyano) that the decision of the Grand Chamber was more of a
political settlement with the Supreme Court of UK (R v Horncastle)

- This author has criticised the Grand Chamber for being timid and too easily accepting the
Horncastle decision

2. Too much discretion

- The CJA has been criticised for providing too much discretion to judges

- The various sections under CJA 2003 that confer too much power to judges

o S114(1)(d) interest of justice is purely based on discretion

o S116(4) leave for fear under s116(2)(e)

o S117(7) discretion to exclude documents

o S125 discretion to exclude evidence that is unconvincing

o S126 discretion to exclude evidence that are undue waste of time

3. Unnecessary preservation of res gestae

- Res gestae is found: s114(1)(b) -> s118(1) para 4(a), (b) and (c)

- Example: s118(1) para 4(a): excited utterance. Where the maker of the statement is
unavailable as the maker dies pursuant to the attack. In this instance, there is an easier
route available i.e. s116(2)(a): maker is dead. If maker is in a coma, s116(2)(b). If maker went
to India for recuperation from the surgery, s116(2)(c)

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Sexual behaviour

- Definition of sexual behaviour needs to be reformulated – a lot of uncertainty

- S41(3)(a) scope is too broad, Parliament didn’t give the scope, R v A gave the scope and this
scope can be expanded

- S41(3)(b) danger that it can be used for 3rd party SB (Mukadi)

- S41(3)(c) ‘so similar’ has to be reformulated because it is very broad as well. Don’t know the
correct standard – Eg. Evans: merely shouting certain words amount to ‘so similar’

- Evans – Moreover, Heilbron Report provided that PSB with third party shouldn’t be
introduced whereas Lady Hale in *R v Cooper (2009) suggested that ‘one does not consent
to sex in general’. Di Birch criticised that women would ‘run the risk’ of being ‘assumed open
to the advances of all and sundry the minute she admits that she is prepared to contemplate
the prospect of sex with someone she finds attractive’ if third party evidence can be
admitted.

Burden

- Ian dennis’ cardinal principles

- Significance of maximum penalty

- The more the severe the punishment, the less likely to shift LB

- Davies v HSE (2002). Tuckey LJ, that the absence of any risk of imprisonment was
undoubtedly an important factor in determining whether reversal should take place.

- Steyn, Lambert suggested that if the offense carries a maximum penalty, shifting Lb onto the
defendant will infringe Art 6(2).

- Lord Nicholls, Johnstone said the more serious the punishment, the more compelling
reasons must there be to impose a reversal

- Cases

- Sheldrake- 6 months. House shifted LB

- Johnstone (2003) 10 years. LB still shifted. “Compelling reasons” s92(5) TA 94 prove

Expert evidence

- English common law emphasises too much on the necessity limb (care more on necessity
and not reliability) These limbs came from Luttrell

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 - English Courts are willing to call expert evidence when the defendant suffers from some
mental abnormality. Which means if defendant is of normal mental state, it is unlikely to call
for an expert although the issue can still be outside the jury’s comprehension

- Law Comm No 325 (2011) was clear that the emphasis on reliability is totally neglected.
Unlike in the American system, reliability is the main concern and yet the recommendations
by the Law Comm has not been implemented (Daubert approach)

S78

- Lord Justice Watkins in [R v Mason] where the judge was of the opinion that S78 did no
more than to restate which judges had at common law. This view was shared by Sybil Sharp
in “Judicial Discretion and Criminal Investigation (1997)” where the author argued that the
unstructured wording of S78 leaves a lacuna
- Professor Richard Stone in “Exclusion of Evidence (1995)” under S78 equally agreed that it is
difficult to discern any coherent pattern to the decisions under S78