House of Lords
| DOI | 10.1177/002201837303700206 |
| Published date | 01 April 1973 |
| Date | 01 April 1973 |
| Subject Matter | Article |
House
of Lords
CORROBORATION
OF
CHILDREN'S
UNSWORN
EVIDENCE
R. u, Hester
TH E
House
of
Lords
(1972,
3W.L.R. 910)
has
now
reversed
the
decision of
the
Court
of
Appeal
(1972,
3W.L.R.
719;
37
i.C.L.
42)
in this case,
but
has
upheld
the
dismissal of
the
appeal
on
the
(different)
ground
that
the
conviction
was
unsafe
and
un-
satisfactory.
The
respondent
was
charged
under
s.14 ( 1) of
the
Sexual
Offences
Act,
1956
with
indecent
assault
on a girl of twelve.
She
gave evidence on
oath,
but
the
testimony
of
her
nine-year
old
sister was given
unsworn
under
s.38 of
the
Children
and
Young
Persons
Act,
1933,
which
provides
that
a
court
may
receive
the
evidence,
though
not
given on
oath,
of a
child
of
tender
years,
provided
that
where
evidence is given by
virtue
of
that
section,
the
defendant
shall
not
be convicted
"unless
that
evidence is
corroborated
by some
other
material
evidence in
support
thereof
implicating
him".
The
deputy
chairman
instructed
the
jury
that
the
unsworn
evidence
could
amount
in
law
to
corroboration
of
the
sworn
evidence.
The
respondent's
consequent
conviction was
quashed
by
the
Court
of
Appeal
on
the
ground
that
that
direction
was wrong.
The
point
of law of
general
public
importance
certified
by
the
Court
of
Appeal
was
in
terms
of
that
question--eould
the
evidence of an
unsworn
child,
under
s.38,
corroborate
that
of
the
sworn
child
?-but
the
House
of
Lords
pointed
out
that
the
res--
pondent's
conviction
depended
on
the
answer
to a
further
question:-
In
order
that
the
accused
could
be liable to conviction,
could
the
evidence of
the
unsworn
child
be
corroborated
by
that
of
the
sworn
child
?
In
R. v. Manser
(25
Cr. App. Rep.
18),
the
Court
of
Appeal
rejected as
circular
the
argument
that,
where
sworn evidence is
said
to be
corroborated
by
unsworn
evidence,
that
unsworn
evidence
(which
requires
corroboration)
can
in
turn
be
corroborated
by
the
sworn
evidence.
The
court
thus
rejected
the
claim
that
there
can
be
such
"mutual
corroboration".
The
House
of
Lords
has
now
doubted
the
validity of
that
case
and
has
approved,
instead,
the
decision
in
R. v. Campbell
(1956,
2Q.B.
432).
Thus,
the
evidence of
an
unsworn
child,
admitted
under
s.38 of
the
Act
of 1933,
can
amount
125
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