Criminal Procedure
| Date | 01 February 1987 |
| DOI | 10.1177/002201838705100106 |
| Published date | 01 February 1987 |
| Subject Matter | Comment |
CRIMINAL PROCEDURE
(I) NEW LIGHT ON CRIMINAL PROCEEDINGS
It might be thought that the correct procedure to adopt in the course
of
criminal proceedings might be reasonably well established and
clear cut by this stage. It is
all
the more surprising, therefore, to
realise that there have been a considerable number
of
recent cases
which have thrown new light on obscure corners
of
the law.
For instance, the word “trial” may be used in several different
senses. It may be used to describe the whole
of
the court
proceedings. It may be used more precisely to describe that part
of
the proceedings which determines guilt or innocence. It may
describe the trial of a particular issue which may be a preliminary
point, a point arising during the proceedings (sometimes called a
trial within a trial) or a point in relation to sentence, such as
mitigation, compensation, or back duty.
When the reference is more precisely to the determination
of
guilt or innocence, it has been decided that such a trial begins when
the jury
is
sworn and is seised
of
the issue and not when the plea is
taken;
R.
v.
Tonner
[
19851
1 All
E.R.
807.
Oath and Affirmation
The present state
of
the law in relation to oath and affirmation was
examined in
R.
v.
Bellamy
[
19851
The Times,
October
4.
In that case
a woman aged
33
but stated to have a mental age
of
lOgave evidence
on affirmation. The judge had enquired into her competence to
take the oath. He had come to the opinion regarding her theological
appreciation that it would be a farce
to
thrust a bible in her hand as it
was clear that she would not be competent to take a binding oath.
She said that she knew that if she told lies she could be put
or
sent
away.
The Court
of
Appeal held that the judge was clearly right to
investigate whether
or
not she was a competent witness in
so
far as
having a sufficient understanding
of
the nature
of
the proceedings,
66
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