The impact of the Criminal Justice Act 2003 upon the rules relating to examination in chief has been seen as an attack upon the principle of morality. With reference to memory refreshing documents and previous consistent statements, analyses the extent to which you agree with this criticism.
The allegation of the title suggests that the reforms of the Criminal Justice Act 2003 (CJA 2003) as regards memory refreshing documents and previous consistent statements represent an attack against the principle of morality on the judicial process in relation to examination in chief. With reference to these two issues, this piece will accurately describe and compare the state of the law both prior to and after the reforms of the CJA 2003. With this analysis it will therefore be determined whether such an attack on the principle of morality has in fact occurred.
Part A - Rules relating to the use of documents to refresh memory
1. The old common law
Witnesses were not allowed to read from a previous statement as it was expected that they would have a clear recollection of the facts that they personally knew. The rationale was for the oral evidence of the witness to be the formal evidence submitted in court and not the statement on a document . There was however an exception in the form of documents that were contemporaneous to the crime committed.
(a) The test of contemporanity
In Attorney-General’s Reference (No 3 of 1979) it was stated that the memory of the witness may be refreshed by a document where:
“…where the document was made or verified by the witness contemporaneously with the events to which it relates… ”
This therefore meant that under the old common law, the document had to have been executed either at the same time or directly after the events to which it relates .
(b) Loosening of this exception
In R v Da Silva , it was however held that a judge had the discretion to permit the consultation of a non-contemporaneous document in the event of five provisos. These were, firstly, that the witness is unable to remember the events because of the lapse of time, secondly, where the witness made the statement, it represented his recollection at the time. Thirdly, perusal of a memory refresher should be allowed if the witness had not read the statement before coming into the witness box. Fourthly, the judge would have discretion if the witness wished to read the statement before continuing with his evidence and fifthly, that, having read the statement witness would then continue his evidence without any further reference to the document.
The use of non contemporaneous documents was extended in R v Conchrane , when Henry LJ stated that the Da Silva list was non exhaustive and that judges should have a wide discretion in accordance with requirements of fairness and justice. Henry LJ also pointed out that this was necessary as certain witnesses would require to consult such documents .
Despite these liberal judicial decisions, this did not escape from the fact that, whether contemporaneous or not , in the time before the hearing witnesses can consult any manner of material to refresh their memories. This created an absurdity of the law as the oral statement would only be a test of the short-term memory of the witness as opposed to a recalling of events and this especially applied to police officers who would frequently give evidence as witnesses .
2. Reforms of the Criminal Justice Act 2003
Section 139 creates the new statutory basis for documentary use. It states that a witness may refresh his memory if, firstly he announces that the statement being referred to is a record of an earlier recollection and secondly, that this earlier recollection is superior to his current memory in the trial .
There are two issues that could represent an attack on the principle of morality. The first is the complete removal of any requirement for contemporaneity of the documents being referred to with a consequently higher risk of inaccuracy given in the oral statement in court.
It must however be recognised that this was already happening in practice in two situations. The first was during the run-up to the examination in chief whereby the witness was and still is free to refresh their memory with any manner of document or material and the second was the finding in Cochrane where there could be judicial discretion to allow for the use of non contemporaneous material where it was just and fair. Section 139(1) of the CJA 2003 is therefore a mere abandonment of an old test that had effectively already been repealed under common law.
The second issue is that it is unknown whether, under the new law, judges have retained their discretion under Cochrane to allow reference to memory refreshing documentation on the basis of justice and fairness. It seems to be that this discretion now no longer exists and that there is a right for a witness to refresh their memory so long as ss 139(1)(a) and (b) are met. However, although ss 139(1)(a) and (b) are mere formalities and there does appear to be a moral risk of damaging justice, the impact of the new law is minimal given the former presence of judicial discretion and the informal practice of “learning lines” prior to the hearing.
Part B - Previous consistent statements
1. Before the 2003 Act
Previous consistent statements were inadmissible as evidence as they were deemed self-serving. However, in 1997, the Law Commission contended that the courts are more than capable of dealing with and sifting out of useless statements as this is a common practice of the civil courts where previous statements are admissible
Exceptions to this rule of inadmissibility existed for sexual offences where there had been a previous statement shortly after the crime had been committed. This exception dated back to the late 19th century where it was presumed that no such immediate complaint created a presumption against the truthful nature of the woman‘s accusation. A further exception was where the statement was contradictory to the current oral statement in trial.
2. Reforms of the Criminal Justice Act 2003
Previous consistent statements of the witness are dealt with under s 120 of the CJA 2003. They are now admissible under three distinct headings.
The first is that previous statements are admissible when used to rebut a suggestion that the oral statement is fabricated .
The second is that any documentary statement made in a document that is used to either refresh the memory of the witness , cross-examine the witness or is received in evidence is admissible.
Thirdly, if the witness states that the statement is, to the best of their belief, both true and made by the witness , the statement is admissible if it meets the following criteria. Firstly, it is a statement that identifies a person object or place . In addition, the statement has to have been made when matters were fresh in the memory of the witness and at the time of the trial, he cannot be reasonably expected to remember them . A further condition is that the witness is the victim and the offence is that to which the proceedings relate . In relation to this, the statement must be about the offence being tried and the statement had to have taken place as soon as reasonably expected after the committal of the offence . This complaint could not have been made under threat or promise and prior to the announcement of the statement, the witness is required to give oral evidence in relation to the subject matter .
These criterion restrict the admissibility of such statements to key and crucial areas of the case, including, creditability of the witness and there are also strict guidelines as to subject matter of the statement and its source. The new law is therefore highly controlled.
In order to determine whether there is an attack on any moral principle it is important to examine the rationale behind these changes, which are predominantly derived from the Law Commission Report 245 of 1997. Here it was the contention that, instead of compulsorily filtering statements as inadmissible, it should be left to the tribunal to decide which statements should be heard as evidence . Further to this the new law lifts an absurd requirement for juries, magistrates and judicial fact finders, to treat such prior statements as relevant only for purposes of credibility in the event that they are raised in cross-examination. The result of this is that the judicial process is simplified by easing the task of the juror and therefore, far from attacking the principle of morality, this simplification assists it by smoothening the route to justice.
Conclusion
In the former argument concerning memory refreshing documents, uncertainty as to the discretion of judges to allow reference to non contemporaneous documents does raise a moral dilemma. This is however a rather feeble attack on the principle of morality and as regards the appearance of an extended freedom of witnesses to refresh their memories, it has been established that this was already going on in practice at judicial discretion and prior to the hearing.
In the latter argument regarding the admissibility of previous statements, it must be argued that any controlled move to accept further statements as evidence is a welcome development in the judicial processing of data that is hardly an attack on morality.
Bibliography
Legislation
Criminal Justice Act 2003
Civil Evidence Act 1995
Case Law
Attorney-General’s Reference (No 3 of 1979) 69 Cr App R 411
R v Simmonds (1967) 51 Cr. App. R 316
R v Da Silva (1990) Cr. App. R. 233
R v Cochrane [1996] 2 Cr. App. R. 544
R v Gordon [2002] EWCA Crim. 1
R v Richardson (1971) 55 Cr App R 244 at 250
Lau Pak Nigam v R [1966] Crim L R 443
R v Lillyman [1896] 2 QB 167, CCR
Text Book Publications
R May, "Criminal Evidence" (Sweet and Maxwell 4th edition, 1998) at p.517 (Compare with the 5th edition of June 2004)
Government Publications
Home Office Circular 82/1969
Review of the Criminal Courts of England and Wales, chapter 11: The Trial, Procedures and Evidence, available at: http://www.criminal-courts-review.org.uk
Law Commission Report 245, “Evidence in Criminal Proceedings: Hearsay and Related Topics” (1997)
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