THE RULES RELATING TO THE EXAMINATION OF WITNESSES NOTES - BPTC, CRIMINAL LITIGATION
Notes in conjunction with BPP Law School Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
THE RULES RELATING TO THE EXAMINATION OF WITNESSES NOTES
a. Examination in chief
F6.1 EIC = the examination of a W the party calling him and its object is to elicit evidence
supportive of the party's case. Must be conducted in accordance with the exclusionary rules
of general application e.g. hearsay, opinion and the character of the accused. Court may ask
a W questions and where accused is not represented, may ask any question necessary in the
interests of the accused (questions that may be put are in discretion of the court).
F6.15-18 (1) Leading Questions Generally Impermissible in Chief
The general rule: in EIC a W may not be asked leading questions i.e. questions framed to
suggest the answer sought or to assume the existence of facts yet to be established. Evidence
elicited by such Qs is not inadmissible, but the weight attached to it may be substantially
reduced. Difficult to stick to rule so leading Qs may be allowed in IOJ at Judge discretion i.e.
impossible to ask W to identify a person or object in court w/o using leading questions so
these are allowed.
General rule does not apply:
(a) On formal and introductory matters i.e. W name, address and occupation; and
questions relating to facts not in dispute, or are merely introductory to questions about
facts which are in dispute, are also generally allowed;
(b) LQs may be put if the party calling him has been given leave to treat him as hostile
3 ways that an out of court written witness statement may be used in court:
1. Statement may be read out if the contents of the statement are agreed
2. Witness ask to ‘refresh memory’ from their statement
3. Statement can be used in cross-examination on a previous inconsistent statement
(2) Refreshing memory
s139(1) CJA 2003→ a witness in the course of giving his evidence, may refer to a document
in order to refresh his memory on two conditions that:
(1) He gives evidence that the document records his recollection at the time he made it and
(2) His recollection at that time is likely to have been significantly better than at the time of
his oral evidence – ultimately matter of assessment for Judge
S139(2) → memory refreshing of a transcript of a sound recording if states in evidence that
the account represents his recollection, that recollection significantly better and a transcript
has been made of the sound recording.
S139(1) and (2) apply to any person giving oral evidence, including the accused. TJ has
discretion to refuse an application under s139 even if statutory conditions are met.
An application will normally be made by an advocate, but it is the proper function of the judge,
where the IOJ demand it, to suggest that a W, refresh his memory from a document.
, Under s. 139(1) and (2), the witness may refresh his memory 'at any stage' in the course of
giving his oral evidence- usually in EIC.
Making or Verification of Document → for s139(1) a ‘document’ means anything in which
information of any description is recorded, but not including any recording of sounds or
moving images (s. 140). The document must have been prepared by the W himself or by
another- provided the W witness verified the document. A witness may refresh his memory
from his deposition or statement to the police and then read over by the maker.
Refreshing memory out of court
F6.28-29 Prior to Going into the Witness-box
No general rule that W may not before trial the statements they made at some period close
to the events (Richardson [1971]). The conditions on which a W may refresh his memory
while giving evidence do not apply to a W who refreshes his memory from a statement before
going into the witness-box. All W are routinely provided with copies of their statements
before going into court. W are entitled to refresh their memory from their statement or
visually recorded interview (CrimPD V para 18C). If interview, no requirement that the witness
watch the interview at the same time as the court (18C.4), but if the viewing is at a different
time, before being questioned under CE, W should be asked if and when he watched the
recording (18C.5).
In Richardson [1971], Sachs LJ made the following observations:
(a) P witnesses are normally entitled, if they so request, to copies of any statements taken
from them by PO’s.
(b) It is the practice for defence witnesses to be allowed to have copies of their statements
and to refresh their memories from them before going into the box.
(c) Would be wrong if several W handed statements in circumstances which enabled one
to compare with another what each had said.
For (c), discussions between W should not take place nor should statements be read to
witnesses in each other's presence. Where such discussions have taken place, each case must
be dealt with on its own facts. It is mandatory for P authorities and judges to ensure that W
are informed that they should not discuss cases in which they are involved. If emerges in CE
of the W that discussion may have led to fabrication, the court may take the view that it would
be unsafe to leave any of the W evidence to the jury, but in other cases it may suffice to direct
the jury on the implications the conduct might have for the reliability of their evidence.
F6.31 (3) Previous complaints
CL ‘doctrine of recent complaint’ that the quicker that someone complains about an
allegation, the more likely the complaint is to be reliable. S120 makes complaints admissible
where the complainant testifies that the earlier complaint was made and was true (does
not replace CL but wider and also allows the earlier complaint to show consistency in
complaining to prove truth of the complainant)
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