Evidence Statutes 2012-2013
Book Information
Evidence Statutes 2012-2013
4th Edition
Author: Claire McGourlay
Publication date: 16th August 2012
Purchasing Options:
How to use this Book
Interpreting a Statute
Statutory interpretation is a fundamental legal skill developed by students of law, and one which practicing lawyers continue to hone throughout the course of their careers. Of course, the ultimate interpretation of a statute is down to judges and it is for this reasons that any statute should be approached with a good knowledge of relevant case law. The following is an overview of the key techniques and principles which students should apply when reading and interpreting statutes. The Youth Justice and Criminal Evidence Act 1999 is employed to illustrate examples and is referred to here as ‘the 1999 Act’.
What's in a Statute?
In England and Wales, statutes are split into sections, sub-sections and paragraphs. The section numbers are in bold down the left hand side of the page. Subsections are indicated by numbers in brackets, indented slightly inwards. Paragraphs are given as lower case letters in brackets indented slightly further in. To give an example: section one, subsection one, paragraph one of the 1999 Act reads “neither the offence nor any associated offence is one for which the sentence is fixed by law”. In legal writing, the citation for this section is abbreviated to s.1(1)(a). Many sections have titles written in bold next to the section number. These give a good indication of the topic of the section although, strictly speaking, they are not themselves law.
Finding your Way Around a Statute
Statues often require the reader to skip back and forth through the sections to check on the interpretation and meaning of various phrases. For example, s.19 of the 1999 Act allows “eligible witnesses” to be granted “special measures” to assist them in giving evidence in court. To determine who counts as an “eligible person” the reader must skip back to ss.16 and 17. Sometimes the relevant section will indicate which other section is needed to interpret it, but this is not always the case. In addition, many statutes contain sections, usually located near the end, giving lists of words and phrases used in the Act or part of the Act, an example of this is s.63 of the 1999 Act which defines words like ‘accused’, ‘court’ and ‘picture’. It is important to realise that, whilst these are common everyday words, for the purposes of the Act they have very specific legal meanings. As such, the reading of a statute is rarely a chronological exercise. It must also be born in mind that even the definitions provided in sections like s.63 are subject to further interpretation by the courts. If what appears to be a significant or ambiguous word appears to receive no further definition anywhere in a statute, a student should refer to relevant cases for guidance.
Sections Within Statutes
Sections within statutes often provide lists of criteria or features. It is very important when reading such a list to determine whether such criteria are alternatives or cumulative. For example, in s.3(1) of the 1999 Act a list of three criteria are given concerning the contents of referral orders. The question is whether the statute is indicating that one of these criteria must be present within such an order, or whether all three must be present. The answer can usually be determined by looking at the penultimate entry on such a list. If the last word is ‘and’ then the list is cumulative and all the criterion must be present, if it reads ‘or’ then any one of features listed can apply. here, the word ‘and’ is inserted at the end of paragraph (b). This indicates that a referral order must demonstrate all three features listed in paragraphs a–c. Compare this to the list of two criteria under s.16(1). Using the same method we can quickly determine that if a witness falls under the categories described in either paragraph (a) or (b) he or she will be eligible or assistance on grounds of age or incapacity under this section. Unfortunately, not all lists will contain the telltale ‘and’ or ‘or’, in which case the case law must again be reviewed.
Distinguishing between Proscriptive and Permissive
It is also important to distinguish when an act is being proscriptive, indicating something must occur, and when it is being permissive, indicating something can or could occur. For example s.20(2) of the 1999 Act reads “The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so” (emphasis added). This section leaves it open to the court not to discharge or vary a special measures direction even if it does appear to be in the interests of justice to do so. Compare with s.19(3) “In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximize so far as practicable, the quality of evidence given by the witness, the court must consider all the circumstances of the case” (emphasis added). In the first example the Act is giving the court discretion, in the second the legislation is requiring the court to take action.
Reasonableness-Objective or Subjective Tests?
Statutes often make reference to the ‘reasonableness’ of certain actions. Of the many complications in interpreting this phrase is the question of whether the test objective (i.e. reasonable in the eyes of most right-thinking people) or subjective (reasonable in the eyes of a specific person). Take for example s.34(1)(b) of the Criminal Justice and Public Order Act 1994. This section allows courts to draw adverse inferences from a defendant's failure to mention facts when questioned or charged unless “in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned” (emphasis added). In such circumstances must the factfinder base a decision on what would be reasonable for most people (an objective test) or what was reasonable from the perspective of the individual defendant put in that situation (subjective)? To answer this question we need to look at the case of R v. Argent [1997] 2 Cr App R 27, which confirms that this should be a subjective test. (see also Beckles v United Kingdom (2003) 36 EHRR 13 at [59], R v Beckles [2004] EWCA Crim 2766 and the Judicial Studies Board's guidelines as adopted in R v Cowan, Gayle and Ricardi (1996) 160 JP 165 and added to in R v Betts and Hall (2001) 2 Cr. App. R 257).
Two final points should be raised. Firstly, all the statutory provisions in this book were correct and in force as of June 2010. The student is advised to keep abreast of recent developments in legislation to ensure written versions of statutes (from any source) are the most up to date available. Finally, textbooks and academic commentaries will often provide interpretations of statutes. These are often extremely helpful, especially when they bring in the relevant case law. However, it is important to realise that such interpretations are only opinions and may not represent the law as applied by judges.
Quizzes
Multiple Choice Questions
Interpreting Statutes
Scenario 1
In the early hours of the 30th September Mary Allen was awakened by the cries of her daughter Betty Allen, aged 15 years She went into her daughter's bedroom and found her lying on her bed naked and crying. She was holding her nightdress, which was torn. Mary asked her daughter why she was crying and Betty complained that her father, Roger Allen, had raped her. Betty Allen is now being counselled following the alleged rape. The psychologist in whose care she is states that she does not wish to appear in court and give evidence and is particularly concerned at the prospect of facing her father in those circumstances. She told the police in her statement that she had arrived home shortly after midnight. Her father, who had been lying on the couch, abused her and called her a slut. She went straight to her bedroom and went to bed. Shortly afterwards her father entered her bedroom and tore off her nightdress before raping her. When he left her room she had a shower because she felt dirty. Her mother came into her room sometime later and she told her what had happened.
What special measures might Betty Allen be entitled to under the Youth Justice and Criminal Evidence Act 1999?
Scenario 2
Jack (aged 38) has been the victim of assault at the hands of Bill. The two were watching a game of football in a bar when Jack's team scored a goal. Jack jumped to his feet in celebration and knocked over Bill's pint of beer into his lap. Jack attempted to apologise but, owing to certain learning difficulties, he has problems communicating and cannot get the words out. Already annoyed at this own team conceding the goal, Bill punched Jack, leaving him with a black eye and broken teeth.
At court, Jack is adamant that he wants to give evidence unassisted in order to show Bill he is not afraid of him.
What special measures might Jack be entitled to under the Youth Justice and Criminal Evidence Act 1999?
Scenario 3
Maurice, Neil and Oliver, are jointly charged with various offences of fraud.
Consider whether the confessions made by each of them in the circumstances described below would be admissible evidence for the prosecution.
- Maurice, aged 23 with no previous convictions, was arrested at 6.00a.m. in the presence of his heavily pregnant wife. He was questioned for a total of 12 hours during his detention in two-hour periods. On the tape-recording of the final interview, the interviewing officer was heard to express concern that Maurice's wife was on her own with the baby due any time and that she needed him with her. He then said “The sooner we clear up this matter the sooner you can get home to her”. Maurice then admitted his part in the fraud.
- Neil is addicted to heroin and had injected himself only two hours before being arrested. The police called a police surgeon who examined Neil 10 hours after his arrest and said he was fit to be interviewed. Neil admitted taking part in the fraud at the first interview because, he said, “he had to get out and get another fix” of heroin.
- Oliver, who has a number of previous convictions for dishonesty, including two terms of imprisonment, was refused access to a solicitor. Oliver was then interviewed four times over a period of twenty hours, in two-hour periods. During the interviews it was clear he was well aware of his right to remain silent and did so on a number of occasions. Despite this he admitted his part in the fraud during the final interview.
Scenario 4
Sean is charged with indecently assaulting Abigail, who alleges that Sean groped her and put his hands in her underwear while she was walking in a churchyard. Sean's defence is that Abigail is a prostitute (a fact she admits) and that she had consented to perform sexual acts in return for a specified sum, but had then demanded more money and threatened to accuse Sean of rape if he did not pay. Sean's defence team now wants to cross-examine Abigail in relation to her previous convictions for offences of dishonesty, namely going equipped for theft, handling stolen goods and a residential burglary, the latest of which was four years before the events at issue.
Consider whether the character of Abigail would be admissible evidence for the defence.
Scenario 5
One evening Jamie was subjected to a serious assault as he left work in the city centre. He was stabbed and kicked by two men and died of his injuries two days later. McGourlay and Hall are charged with his murder. On the way to hospital Jamie said to the paramedic attending him “It was Mcgourlay and Hall. They've done for me like they said they would”.
Consider whether, and if so on what principles, the oral and written statements can be admitted at their trial.
Scenario 6
Louise has been charged with manslaughter. At her trial she does not give evidence.
Consider the implications of this.