Case Commentaries
| Date | 01 November 2009 |
| Published date | 01 November 2009 |
| DOI | 10.1350/ijep.2009.13.4.335 |
| Subject Matter | Article |
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Recent fabrication of evidence—United Kingdom and Canada
Witnesses cannot engage in self-corroboration, therefore their prior consistent
statements are, as a rule, inadmissible. Various exceptions to this rule were recog-
nised at common law, including one that admits a substantially similar prior
consistent statement to rebut a suggestion that the witness’s story is a recent fabri-
cation (RvEllard 2009 SCC 27 at [31]–[32]). A prior consistent statement admitted
under this common law exception is admissible to show consistency and thus
supports the credibility of the witness; it is not evidence of the truth of what it
states. In RvAthwal [2009] EWCA Crim 789, the Court of Appeal considered (1)
whether the requirements of the common law exception were satisfied and (2) if,
since the codification of the hearsay rule by the Criminal Justice Act 2003, the
admissibility of a prior consistent statement to rebut an allegation of fabrication
is still governed by the common law.
The appellants, B, a mother, and S, her son, were convicted in 2007 of the murder
of S’s wife, V. V had disappeared during a trip which all three had made to India
and the circumstantial evidence was strong that she was dead. Another
daughter-in-law, W, was a crucial prosecution witness. W testified about (1) a
family meeting in S’s presence before the trip to India at which B had said that she
would take V to India to get rid of her and (2) of a conversation soon after B and S
had returned from India without W in which B had said that V had been strangled
and her body thrown into a river by B’s brother. The defence said that this evidence
was pure invention. Defence counsel took care while cross-examining W not to
suggest that the invention was a recent one, nevertheless, the trial judge ruledthat
the jury would have had this impression and permitted the prosecution to elicit
evidence from W during re-examination that she had made similar allegations
either in December 1998 or January 1999, soon after B and S’s return, to her father
and sister. The father and sister were permitted to repeat the gist of what W had
said to them and to explain the circumstances in which she had spoken of these
matters. At the end of the trial the judge summed up this aspect of the case along
traditional common law lines; the jury could use the previous statements as
evidence of consistency and to rebut the allegation of recent fabrication—they
doi:10.1350/ijep.2009.13.4.335
342 (2009) 13 E&P 342–361 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
were not to be treated as evidence of the truth of what W had said. The Court of
Appeal agreed with the trial judge that the cross-examination (even if this was not
what counsel had intended) would have been understood by jurors as an
allegation that W had fabricated her account not long before she went to the
police in October 2005 and made a statement. The trial judge therefore applied the
common law rule correctly. The importance, when reviewing a ruling by the trial
judge, of according great weight to his view of trial facts was stressed.
From the point of view of an English lawyer, the most interesting part of the
judgment is the discussion on the second issue. Chapter 2 of the Criminal Justice
Act 2003 codifies the admissibility of hearsay evidence. According to s. 114(1), in
criminal proceedings ‘a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if, but only if’ (a) a provision of the
Chapter or another statutory provision makes it admissible or (b) a common law
rule preserved in s. 118 makes it admissible or (c) ‘the court is satisfied that it is in
the interests of justice for it to be admissible’. Section 118 does not mention recent
fabrication, but s. 120 does. Under s. 120(2):
If a previous statement by the witness is admitted as evidence to rebut a
suggestion that his oral evidence has been fabricated, that statement
is admissible as evidence of any matter stated of which oral evidence by
the witness would be admissible. (emphasis added)
As the Court of Appeal recognised at one point in the judgment, this section is
concerned with the consequences of admitting a previous consistent statement to
rebut an allegation of fabrication and not with its admissibility in the first place
(ibid. at [43]; see also RvT[2008] EWCA Crim 484 at [18]). That said, the trial judge,
according to the Court of Appeal, approached the admissibility of the previous
statements wrongly. Admissibility was not governed by the common law, but by
s.114(1)(a).
Once a previous statement is admitted to rebut a suggestion of fabri-
cation, section 120(2) is clear. The statement is admissible as evidence
of any matter stated. That is the same language as is used in section
114(1) ... In our judgment, all this leads inexorably to the conclusion
that a previous statement which is admitted to rebut a suggestion of
fabrication is admitted as admissible hearsay under the regime of the
2003 Act. It is admissible as evidence of any matter stated because
section 114(1)(a) provides that it is so admissible ‘if … any provision of
this chapter … makes it admissible’ and section 120(2) makes it admis-
sible for that purpose. (ibid. at [53], per Maurice Kay LJ)
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