Court of Appeal
| DOI | 10.1177/002201839205600202 |
| Published date | 01 May 1992 |
| Date | 01 May 1992 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
COMPENSA
nON
ORDER:
RELA
nON
BETWEEN OFFENCE AND
DAMAGE
R v Derby
Before acompensation order can be granted in respect of an offence, what
degree of causation must be established between the offence (or the
offender's contribution to the commission of the offence) and the loss,
damage or injury which is alleged to have been suffered following the
offence? In R v Derby (1990) 12 Cr
App
R (S) 502, two men went to the
house of one who was thought to be having an affair with the girl friend
of one of them, who was the appellant in that case. His co-defendant
attacked the man and caused serious injuries and eventually pleaded guilty
to an offence of unlawful wounding. The appellant, having threatened the
man with a knife but having taken no part in the attack carried out by the
co-defendant, pleaded guilty to affray and was sentenced to 12 months'
imprisonment, suspended. Acompensation order was made against him
in the sum of £4,000. He appealed on the ground that the prosecution had
accepted that he had gone to the victim's house with no purpose other
than to frighten him and that in fact he had done no more than that. The
Crown had expressly informed the court that 'it was really on that general
basis that he was present in that frightening situation, and was actually the
instigator of it, on which the Crown rely'. Was such an allegation sufficient
to justify an order made under s 35(1) of the Powers of Criminal Courts
Act 1973? The subsection permits the court to make an order
'to
pay
compensation for any personal injury, loss or damage resulting from that
offence or any other offence which is taken into consideration'. The Court
of Appeal has held that the 'strict views of causation in tort and contract'
are not to be applied by the court in deciding whether the injury, loss or
damage 'resulted from' the offence. In the present case, however, Tudor
Evans Jstated that 'it is also entirely clear that there must be evidence of
causation before an order can be made'. The evidence showed no more
than that the appellant went to the house to frighten the man and that the
co-defendant then 'took over' the frightening situation. On this basis, the
court concluded that there was no evidence of any causal connection
between the appellant's offence and the injury done to the victim, so that
no order could be lawfully made under the Act.
The
court appears to have attached no importance to the fact that it
was agreed that the appellant was the instigator of the event. The Crown
Court judge no doubt took the view that when one instigates and organises
a series of events, one causes the consequences of what one has organised.
And, indeed, since the injury would not have been inflicted, had he not
(exclusively to serve his own purpose) arranged the visit in the company
of the other man, there was one sense in which a philosopher would say
that he was the cause of it. Perhaps the distinction is between the
wrongdoer's act and his offence (the affray); but, if so, it is somewhat
126
Court
of
Appeal
tenuous. The Crown Court judge had made the
order
on his own initiative,
without inviting comment from the prosecution. The Court of Appeal held
that, although ajudge may make an
order
on his own initiative in a proper
case, this was not such a case. The appellant had instigated no more than
afrightening situation. He had not instigated the offence (wounding) from
which the injury 'resulted'. There was therefore no evidence of any causal
connection between the defendant's offence and the injury.
EXPERT
EVIDENCE
BASED ON DISPUTED
TECHNIQUE
R v
Robb
Expert witnesses are exempt from the cardinal rule that a witness is
confined to oral evidence of what he has personally heard, seen, done or
witnessed. But in what fields may expertise exist?
And
who is an expert?
Both questions arose in R v
Robb
(1991) 93 Cr
App
R 161. A man was
kidnapped and detained. Telephone calls (most of which were taped) were
made to his wife demanding aransom and to a cab company which was to
collect the ransom. At the trial of the appellant for conspiracy to commit
false imprisonment, there was considerable evidence to connect him with
the man who had arranged the crime and with the equipment used, but
the Crown relied also upon the evidence of an expert who stated that the
voice heard on the taped telephone calls and that of the defendant heard
on a video tape found in his flat were the same voice. The appellant
objected to the admission of the opinions of the expert, on the ground
that his techniques were not only questionable, but had been questioned
by the vast majority of
other
experts in the same field.
Bingham Upointed out that the first question to be considered in any
case in which opinion evidence was to be admitted was whether there was
aproper, field of expertise in the subject-matter in question. Expertise is
not confined to the 'core areas' of the old-fashioned academically based
sciences, for the court will recognise expertise in subjects 'far removed
from anything that could be called a formal scientific discipline'. On the
other
hand, the court will not accept expert evidence in every subject:
astrologers, soothsayers and witch-doctors, for instance, would be ex-
cluded. Here, it was admitted that voice-identification was a field in which
the court would receive opinion evidence from anyone who had the
necessary skills and who had carried
out
the necessary tests. This being
established, the second question was whether the witness should be
recognised as an expert in this field.
Here,
the witness was a university
lecturer in the subject, who had often given evidence in court. The only
question, therefore, was asto the validity of the tests which he had applied.
The
witness relied on purely auditory techniques. He concluded that there
was no difference between the voices heard on the various tapes, since
there was no difference in the voice quality and pitch or in pronunciation
and so on. The appellant objected on the ground that the vast majority of
experts were agreed (so that theirs was the orthodox professional opinion)
that that evidence, to be of any value, must be supplemented and
127
Journal
of
Criminal
Law
verified by acoustic analysis based on physical measurement of resonance,
frequency and so on. Although the great weight of professional opinion
declared that evidence based solely on auditory techniques to be unreliable,
the witness maintained his own opinion in the face of overwhelming
opinion from all over the world. The trial judge put his evidence to the
jury as the opinion of an expert. The Court of Appeal pointed out that,
while the fact that most of the experts were against the witness might lead
the jury to give little weight to his opinion, the question for the court was
whether as a matter of law the evidence was admissible at all. Although
Bingham Uconceded that the court had
'not
found this an entirely easy
question', it concluded that the opinion was that of an expert and was thus
admissible, even though it was apparently that of a small minority. In the
same way, it may be remarked, if a surgeon gave his opinion that a medical
practitioner had been guilty of negligence and it was pointed out that the
technique laid down in every textbook was that which had been followed,
it is open to the witness to say that he, being ahead of the field, is of the
opinion that that technique is wrong.
The appellant took the further point that in the Scottish courts, followed
in the English courts, it has been established that an expert is not simply
to give his ipse dixit, but is to afford the court the scientific criteria by
which it can test the accuracy of his conclusions and so enable it to form
its own independent opinion: cf Davie v Edinburgh Magistrates [1953] SC
34 and R v Turner (1975) 60 Cr
App
R 80. This proposition the Court of
Appeal accepted. The question, however, was how that principle is to be
given practical effect. Did it mean that the witness is required to establish
the sort of scientific proof which his opponents demand? The court here
rejected counsel's argument that there was no material upon which the
accuracy of his conclusions, reached after his merely listening to voices,
could be judged. He had stated in some detail the features of the human
voice to which he had paid attention and the differences for which he had
looked (in vain). This evidence, in the opinion of the Court of Appeal,
satisfied the requirements laid down in the Scottish and English cases
(above).
It
was finally put to the court that the evidence should not have
been admitted because of the adverse effect it had on the fairness of the
proceedings (whether with particular reference to s 78 of the
PACE
Act
1984 or simply as a general proposition). But Bingham U pointed out that
'the fairness of the proceedings' is not to be equated with
'an
adverse
effect on the defendant's chance of acquittal'. The admission of such
evidence is likely in all cases to have just that effect: that is why it iscalled.
But 'fairness is a two-way street' and must mean fairness to both sides, so
that, provided the defendant is given an opportunity to meet the evidence
and rebut it, its admission cannot be unfair merely because, if accepted
by the jury, it diminishes the chance of his acquittal.
The prosecution had also relied on the evidence of police officers, who
stated that they had listened to the voice of the appellant whom they had
accompanied in the course of a car journey which had lasted several hours.
They had also listened to the video tape of the voice of the appellant and
they stated in evidence that they had recognised the voice on the tapes as
that of the man with whom they had chatted for so long in the car. As this
128
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting