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Evidence Practice And Principles Discretionary Corroboration Warnings Notes

BCL Law Notes > Evidence II: Practice and Principles Notes

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Historically, evidence of sexual Cs treated as potentially suspect and heightened risk of unreliability
Hale: rape is:
- An accusation easily to eb made and hard to be proved, and harder to be defended by the part accused, tho never so innocent.'
These concerns translated into the giving of warnings to juries as a safeguard against wrongful conviction
Used to be a mandatory corroboration
So - as recent complaint cannot be used as corroboration - what can?

R v Baskerville [1916] 2 KB 658
Lord Reading CJ-

Evidence in corroboration must be:

Independent testimony which affects the accused by connecting or tending to connect him with the crime.


It must be evidence which implicates him, that is, which confirms in some material particular, not only evidence that the crime has been committed, but also that the prisoner committed it

Connect A to crime
Implicates him
Evidence the crime happened
Evidence he committed it

Lord Reading:Need not be direct evidence, sufficient if it is merely circumstantial evidence of his connection w the crime.

DPP v Kilbourne 1973
Lord ReidCorroboration is not technical - judged by reference to how you would believe a statement in the 'ordinary affairs of life'

McGrath on the old mandatory warning:Complex affairFirst, the judge had to give the jury a clear and unambiguous warning that:

Uncorroborated evidence:

1. Dangerous to convict on a sexual Cs uncorroborated evidence 2. Having considered the warning, entitled to convict if satisfied that C was a truthful witness.

3. Then, if no evidence capable of constituting corroboration, sufficed to direct jury that the evidence of C uncorroborated.
Its dangerous to convict on a sexual complainants uncorroborated evidence, but you can convict them if you believe them, but their evidence is uncorroborated.
Potentially corroborative evidence:

1. Explain nature of corroboration and point out any potentially corroborative evidence

2. Warn jury to not treat any evidence in which they might, in the absence of the warning, mistakenly believe to be corroborative (recent complaint for e.g.)
LRC, Report on Rape and Allied Offences (LRC 24-1988)Recommended that should no longer be mandatory
Decision to give warning should be given and its content - discretionary
'unduly restrictive.'
'in some cases, the mandatory warning is superfluous and may raise unnecessary doubts in the minds of jurors.'

Criminal Law (rape) amendment act 1990
S 7 (1)At trial of a person charged with an offence of a sexual nature, where evidence is given by a C, and by reason only of the nature of the charge there would - but for this section
- be a requirement that the jury be given a warning about the danger of conviction on uncorroborated evidenceIt shall be for the judge to decide in their discretion, having regard to all the evidence given, whether jury should be given that warningAny law or practice where there was previously such a requirement, is hereby abolished.If judge decides to give warning, it shall not be necessary to use any particular forms of words

The People v JEM [2001]
The wording in UK legislation is different but the legal principles underpinning both statutes is comparable', namely:To 'abrogate the pre-existing requirement as to warnings in relation to uncorroborated evidence in sexual offence cases'

Expressly endorsed the approach English case of Makanjuola and:
When is it appropriate?Whether a judge chooses to give a warning and in what terms will depend on circumstances of case, the issues raised, the content and the quality of the witness's evidenceMay be appropriate to warn jury to exercise caution before acting on evidence that is not supportedThe mere fact the offence is of a sexual nature is not a basis for giving a warningThere will need to be an evidential basis for suggesting that the evidence may be unreliable. Such a basis does not include mere suggestions by cross-examining counsel.If any questions arise as to whether a special warning is appropriate in respect of a witness, desirable that such be resolved in a Voire Dire prior to final speeches

Where judge decides to give one;Should do so as part of review of evidence and directions as to how the jury should review the evidence

as opposed to giving it as a 'set-piece legal direction.'Judge to decide strength and terms of warning

Where witness has been shown to be unreliable, but no special warning is requiredMay consider it necessary to urge cautionIn extreme cases where witness has shown to have lied/ made previous false complaints/ has grudge against A - a stronger warning may be thought appropriateJudge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. Th People v PJ 2003
Corroboration warning considered defective where judge failed to explain the meaning of corroboration and how a lack of corroboration might affect the jury's views on the evidence.It is discretionary and when a judge exercises his discretion and gives oneMust do so in clear and unmistakable terms

Must explain:
a. The meaning of corroboration b. How its absence may affect the jury's view on the evidence

The People v Gentleman [2003]
Prosecution for a number of counts of indecent assault. TJ gave warningThe decision is discretionary, but the warning is has qualificationsAppellate court entitled to consider appropriateness and adequacyJury should be informed why the law considers it unsafe to convict on uncorroborated evidence and that they must exercise caution and special care

Conditions under which discretion will be exercised:This case was obviously a case which one would not be in the least surprised' that TJ
found it necessary

1. No corroboration of the victim's story

2. Happened 22 years agotime can do stranger things to people's memories of events so long in the past

3. no complaint made at the time.Even despite admission by the judge that there 'may be reasons…as to why there was no complaint it is nevertheless a factor to be considered'

Reinforces the myth that a contemporaneous complaint is probative as evidence that the alleged incident occurred - all the psychological evidence basically says this is untrue. Should not be the basis of a corroboration warning, therefore. Unreliable story partly because she did not make a complaint even though there may be good reasons that she did not make such a complaint - this elucidates the unduly strict and non-sensical nature of the doctrine of recent complaint that contains qualifications which don't reflect reality, are baseless and are ultimately illogical. Highlights the unfairness in the sense that the doctrine largely excludes contextual circumstances or at least did in the past and based the admissibility on the time elapsed in isolation from other potentially explanatory justifications for the absence of the complaint. WHAT EVIDENCE IS CORROBORATIVE?
People v D 1993 CA
Egan JIndependent testimony which affects the accused by connecting him and tending to connect him with the crime

People v Slavotic 2002Conviction for rape quashed on basis that it was incorrect to direct the jury that a particular term of evidence could be treated as corroborative when the evidence was equally open to an innocent explanation

People v PC 2002TJ's otherwise impeccable charge found erroneous:Went beyond reciting the prosecutions argument that an aspect of the A's evidence as lent credibility to her testimony, to directing the jury that such evidence was capable of amounting to corroboration

In both cases the judge was telling the jury that merely potentially corroborative evidence was corroborative or non-corroborative evidence had potential to be corroborative


1. 2.

3. 4.

5. Concept of corroboration must be explained to jury
Rationale for the warning must be explained
Language in which the rationale for the warning is conveyed in important
Potentially corroborative material, if it is present, should be pointed out to the jury
The jury should be told that even in the absence of corroboration, they may convict the accused if they are satisfied of guilt beyond reasonable doubt

People v PC 2002
Murray JThe accepted definition from People v DIndependent testimony which affects the accused by connecting him and tending to connect him with the crimeIt must be evidence which implicates him

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