Expert Evidence
Published date | 01 August 2006 |
Date | 01 August 2006 |
Author | Adam Wilson |
DOI | 10.1350/jcla.70.4.292 |
Subject Matter | Court of Appeal |
ambit permitted by the statute merely because, as here, it comes in a
stark uncompromising form’ (at [29]).
It is clear from this judgment that once a defendant can show that
evidence of the previous sexual history of a complainant is relevant and
fulfils the statutory requirements in s. 41 of the 1999 Act the evidence,
which includes also any questions in cross-examination, must be ad-
mitted in full and the trial judge does not have a discretion to admit only
parts of or certain aspects of it. This must be the correct interpretation of
the section and, indeed, is necessary to avoid the artificial approach
adopted by the trial judge in this case. At first glance this may seem to
open up s. 41, but as the requirements still must be satisfied by a
defendant and they remain restrictive this case could not have the result
that such evidence or cross-examination must be routinely admitted. A
review of s. 41 has been proposed in light of the low convictions rates for
rape, particularly where consent is the defence. It is suggested that
whatever form the regulation of evidence in this complex area may take
any restriction is subject to Article 6 of the European Convention on
Human Rights and if certain evidence is deemed admissible it must be
admitted in full and not distorted to the extent that a conviction is
unsafe or, indeed, a trial unfair.
Laura McGowan
Expert Evidence
R vHarris; R vRock; R vCherry; R vFaulder [2005] EWCA Crim 1980,
Lorraine Harris was convicted, in 2000, of the manslaughter of her four-
month-old son Patrick. At trial the prosecution case was that Patrick had
died as a result of a shake which caused bleeding into the skull around
the brain. There was also evidence as to haemorrhaging in the eyes. The
defence submitted that death was attributable to natural causes such as
a blood disorder.
Raymond Rock was convicted, in 1999, of the murder of his partner’s
child, Heidi Smith. The prosecution submission was that bleeding
around the brain, haemorrhages and damage to the eyes were charac-
teristic of violent shaking. Rock’s testimony was that he had dropped
Heidi, accidentally, onto her bottom. He testified that she, at no time, hit
her head.
Alan Cherry was convicted of the manslaughter of Sarah, his part-
ner’s baby. It was alleged that death had been caused by cerebral
swelling and subdural haematoma. Bruises on the head were indicative
of being held and also impact. Cherry testified that Sarah had fallen from
a chair.
Ian Faulder was convicted of inflicting grievous bodily harm to his
infant son contrary to s. 20 of the Offences against the Person Act 1861.
Bruising, subdural haemorrhages and brain injuries were indicative of
The Journal of Criminal Law
292
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