R v Makanjuola ; R v Easton

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date16 May 1995
Judgment citation (vLex)[1995] EWCA Crim J0516-2
Docket NumberNo. 95/1633/X2
CourtCourt of Appeal (Criminal Division)
Date16 May 1995
Regina
and
Oluwanfunso Makanjuola
Christopher Easton

[1995] EWCA Crim J0516-2

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Tucker and Mr Justice Forbes

No. 95/1633/X2

95/1401/X4

IN THE COURT OF APPEAL CRIMINAL DIVISION

MR IAN BRIDGE appeared on behalf of THE APPELLANT MAKANJUOLA

MR ALAN KENT appeared on behalf of THE APPLICANT EASTON

MISS NICOLA MERRICK appeared on behalf of THE CROWN

1

Tuesday 16 May 1995

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICE: These two applications for leave to appeal raise important issues about the effect of section 32 of the Criminal Justice and Public Order Act 1994. In each case the applicant was convicted of an indecent assault on a young girl. In each it has been argued that the trial judge should have given the jury a full direction in accordance with established corroboration rules notwithstanding the provisions of section 32.

3

On 9 May, having heard both applications together, we refused them. We now give our reasons.

4

Section 32 so far as is relevant provides as follows:

5

"(1) Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is—

6

(a)an alleged accomplice of the accused, or

7

(b)where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed,

8

is hereby abrogated…..

9

(4)Nothing in this section applies in relation to—

10

(a)any trial, or

11

(b)any proceedings before a Magistrates' Court as examining justices,

12

which began before the commencement of this section."

13

It was argued for both applicants that although the requirement to do so is abrogated by sub-section (1), the judge should still in his discretion warn the jury it is dangerous to convict on the uncorroborated evidence of a complainant in a sexual case or of an accomplice. The underlying rationale of the corroboration rules developed in case law was that accomplices may well have purposes of their own to serve and complainants about sexual offences may lie or fantasize for unascertainable reasons or no reason at all. That rationale, it is argued, cannot evaporate overnight. So the traditional warnings to juries should continue. The statute removes the requirement to give them but the judge is still free to do so and he should.

14

If that were right, Parliament would have enacted section 32(1) in vain: practice would continue unchanged. It is clear that the judge does have a discretion to warn the jury if he thinks it necessary, but the use of the word "merely" in the sub-section shows that Parliament does not envisage such a warning being given just because a witness complains of a sexual offence or is an alleged accomplice.

15

It is further submitted that if the judge does decide a warning is necessary, he should give the jury the full old- style direction on corroboration. That means using the phrase "dangerous to convict on the uncorroborated evidence", explaining the meaning of corroboration, identifying what evidence under the old rules is capable of being corroboration, what evidence is not so capable, and the respective roles of judge and jury in this bi-partite quest. In support of this submission a reference was made to paragraph 16.36 of Archbold (1995 edition) where the editors say:

16

"Furthermore, if a judge does give a warning, it seems likely that the existing (i.e. pre-1994 Act) law as to what evidence is capable of corroborating a witness will continue to apply. It seems to follow also that if the judge does give a warning, he will still need to tell the jury what corroboration is and identify the evidence capable of being corroborative."

17

It was, in our judgment, partly to escape from this tortuous exercise, which juries must have found more bewildering than illuminating, that Parliament enacted section 32.

18

A further submission was made as to retrospectivity. In the present cases, the applicants had each been charged and committed for trial before section 32 came into force on 3 February 1995. It was submitted that, in those circumstances, to apply the section and dispense with giving a corroboration direction was unfair. The judge ought to have exercised his discretion to give a full corroboration direction. Otherwise, section 32 was being given retrospective effect. We disagree. The general rule against the retrospective operation of statutes does not apply to procedural provisions (see Bennion: Statutory Interpretation: Second edition: page 218 and the cases there cited). Indeed, the general presumption is that a statutory change in procedure applies to pending as well as future proceedings. Here, the change effected by section 32(1) was clearly procedural. However, sub-section (4) excludes the application of sub-section (1) to any trial or any committal proceedings which began before 3 February 1995. Its application is not otherwise excluded. Sub-section (4) expresses the clear intention of Parliament. Accordingly, since the section was in force before either of these two trials began, it clearly applied to them.

19

Given that the requirement of a corroboration direction is abrogated in the terms of section 32(1), we have been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge ought in summing-up to a jury to urge caution in regard to a particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving "discretionary" warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content.

20

To summarise:

21

(1)Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.

22

(2)It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.

23

(3)In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

24

(4)If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

25

(5)Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.

26

(6)Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules.

27

(7)It follows that we emphatically disagree with the tentative submission made by the editors of Archbold in the passage at paragraph 16.36 quoted above. Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated.

28

(8)Finally, this Court will be disinclined to interfere with a trial judge's exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense.

29

We now proceed to consider these two applications individually.

30

APPLICATION OF MAKANJUOLA:

31

This applicant, aged 29, was unanimously convicted on

32

23 February 1995 at Isleworth Crown Court of indecent assault. After adjournment for preparation of reports, he was sentenced on 23 March 1995 to 6 months imprisonment.

33

He...

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