R v Acton Justices, ex parte McMullen
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1990 |
| Date | 03 May 1990 |
| Court | Queen's Bench Division |
Queen's Bench Divisional Court
Before Lord Justice Watkins and Mr Justice Potts
Evidence - admissibility - statement of scared witness
A statement in writing given by a witness was admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible where the witness was unable to give the evidence through fear, whether arising as a result of the circumstances of the offence or acts or words occurring subsequently.
While the provisions of the Criminal Justice Act 1988 allowing the reception of such statements were novel and had released an unruly horse, any danger of a flood of written evidence pouring into the criminal courts to the detriment of the defendant was adequately restrained by the process of judgment and discretion to which that evidence would inevitably be subject.
Once it had been found that the witness could not give the evidence through fear and the stipulations of section 23(3) of the Act had been satisfied, its admissibility was not subject to any discretion, although whether it was admitted or not remained so. The provisions of the Act covered old style committal proceedings as well as those at trial.
The Queen's Bench Divisional Court so held when refusing applications for judicial review by Christopher McMullen, David Burke and Raymond Canning of the decision of Acton Justices, and of Jason Lawlor of the decision of the Tower Bridge Metropolitan Magistrate, by which they ruled admissible under the Criminal Justice Act 1988 statements in writing at old style committal proceedings, under section 6 of the Magistrates Courts Act 1980.
Section 23 of the 1988 Act provides: "(1) … a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if … (ii) the requirements of subsection (3) … are satisfied.
"(3) The requirements in subsection (1)(ii) … are (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way."
Mr Elikkos Georghiades for Lawlor; Mr Andrew Campbell-Tiech for McMullen, Burke and Canning; Mr David Howard Evans...
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