Chapter 7 Selected guidance on approaching questions

Cross-examination and re-examination

Question 1

The reasoning of the House of Lords in R v A (No 2) [2002] 1 AC 45 can be broken down into three parts:

  1. by reason of s 3, Human Rights Act 1998, s 41 Youth Justice and Criminal Evidence Act 1999  - and in particular s 41(3)(c) – should be so read that evidence/questioning that is required to ensure a fair trial under art 6 European Convention of Human Rights should not be excluded/prevented;
  2. in consequence, logically relevant evidence of the complainant’s sexual experience with the accused may be admitted under s 43(1)(c): the requirement of ‘coincidence’ should give way to broader considerations of relevance; and
  3. therefore evidence of a recent close and affectionate relationship between the complainant and the accused may be admitted, not to prove consent, but to show the complainant’s specific mindset of affection towards the accused. Such a relationship should be distinguished from isolated acts of intercourse with the accused, as in A (No 2) itself.

The reasoning in (i) seems to be uncontroversial. However, views differ on (ii) and (iii). On one view, evidence of the complainant’s sexual experience with the accused is irrelevant when consent is in issue (or irrelevant save in the exceptional situation described in s 41(3)(c)). On another view, however, there are circumstances going beyond those described in s 43(1)(c) which can be relevant to the issue of consent because they throw light on the complainant’s state of mind towards the accused and which, in order to ensure a fair trial, should not be kept from the jury. However, as the House of Lords acknowledged, a line has to be drawn and it cannot be drawn with precision.

Finally, Lord Clyde made clear that it is much more difficult to show relevance to consent where evidence relates to sexual behaviour with someone other than the accused. This appears to be a valid distinction. See also R v White [2004] EWCA Crim 946 (complainant a prostitute), distinguishing A (No 2), where it was held that it would take a very special case to introduce such evidence where it could not be admitted by an ordinary reading of s 41. R v Evans [2016] EWCA Crim 452 appears to be an example of such a special case. However, the facts of that case were such that its value as a precedent is likely to be minimal.

See generally The Modern Law of Evidence (‘MLE’) 13th ed at pp233-242.

Question 2

  1. Relevant to credit? Most unlikely, having regard to the test in Hobbs v Tinling [1929] 2 KB 1: (i) the imputation would not seriously affect the opinion of the court as to Charlie’s credibility as a witness; (ii) it cannot be said whether the matters in question are ‘remote in time’ (we are not told Charlie’s current age), but they are of such a character that would not affect or would affect to only a slight degree the opinion of the court as to Charlie’s credibility as a witness; and (iii) there is a disproportion between the importance of the imputation and the importance of Charlie’s evidence. See The Modern Law of Evidence (‘MLE’) 13th ed at pp219-221.
  2. If Charlie was an alcoholic at the time when the contract was allegedly made, this would be likely to affect the opinion of the court as to his credibility as a witness on the issue whether a contract was or was not entered into: see the test in Hobbs v Tinling, ibid. If evidence of his alcoholism is admitted but denied, it could be proved under the exception to the rule on finality of answers to questions on collateral matters relating to physical or mental disability affecting reliability: see Toohey v Metropolitan Police Comr [1965] AC 595: for the rule, see MLE 13th ed at pp242-244 and for the exceptions see at pp244-248.
  3. The statement in the letter amounts to a previous inconsistent statement. It is highly relevant to the key fact in issue, because if Charlie had lost contact with Damien ‘many years ago’, then he did not enter into a contract with him in 2015. Therefore cross-examination on the issue will be allowed. The previous statement is ‘relative to the subject matter of the indictment or proceeding’ and therefore if it is denied or not distinctly admitted, it may be proved under ss 4 and 5, Criminal Procedure Act 1865. Under s 4, mention must be made of the circumstances in which the statement was made and Charlie must be asked whether he made the statement. Under s 5, if it is intended to contradict Charlie, his attention must be drawn to the relevant parts of the letter. The statement then becomes admissible  both for the truth of its contents and in relation to Charlie’s credibility: s6 (3) and (5), Civil Evidence Act 1995. See MLE 13th ed at pp221-225.
  4. If the offer was not accepted, it would seem that ‘it is of no importance whatever’ - see A-G v Hitchcock (1847) 1 Exch 91, MLE 13th ed at p243-244. However, if the offer was accepted, it tends to show Charlie’s bias or partiality, i.e. that he decided to make false allegations against Damien in order to get the free tickets. If denied, evidence in rebuttal will be admissible under the bias exception to the rule on finality of answers to questions on collateral matters: see MLE 13th ed at pp245-246.
  5. Previous serious fraudulent conduct resulting in a criminal conviction is most likely to satisfy the test in Hobbs v Tinling (see (a) above) and therefore permit cross-examination of Charlie on the matter. If he denies it, or does not admit it, or refuses to answer, it can be proved under s 6, Criminal Procedure Act 1865 (which applies to civil as well as criminal proceedings), subject to s 4(1) Rehabilitation of Offenders Act 1974 (cross-examination on spent convictions  prohibited unless judge satisfied not possible for justice to be done except by admission of the conviction): see MLE 13th ed at p244.
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