How have the courts' blurring of the line between credit and issue affected the law concerning collateral issues and the finality rule? Is there need for reform?

The case of R v Busby was the first of a series of cases in the last twenty years which has reintroduced the debate over credit and issue.  The defendant was alleged to have made incriminating comments in an interview with the police.  Two police officers were alleged to have threatened a potential defence witness, though both denied this upon cross-examination.  The issue therefore arose as to whether this witness could be called to testify about being threatened.  If the allegation of a witness being threatened was collateral, the police officers’ testimony was final.  However, if the court believed it to be relevant to the issue that was being tried, then the witness may be called.  Whether the witness was threatened or not, was clearly not central to whether the defendant had committed the offence, however the defence had wished to use the witness to establish that the police were prepared to go to improper lengths in order to gain a conviction, thus discrediting the interview evidence.  

On appeal the court held, that this evidence was relevant to the issue being tried, not a collateral matter.  They held that the witness should have been called at trial and supported the argument that the evidence would have indicated ‘that the officers were prepared to cheat in furtherance of the prosecution’.  However, the Busby decision left the courts unsure how to accurately interpret case. 

It appears unclear whether the decision is based on the belief of the court that the evidence of the witness truly went to the issue in hand, though this now seems unlikely, or whether the court exercised its discretion in adopting one of the exceptions to the rule.  A number of exceptions have been formulated by the courts as a way of expanding the concept of ‘issue’ beyond the narrow Hitchcock test.  This flexibility has been commended as an asset of the finality rule, in particular for not having an exhaustive list of exceptions.  There is however a group of recognised, well established exceptions: (1) previous inconsistent statement of the witness (2) previous convictions of` the witness (3) disability of the witness affecting their reliability (4) evidence of the witness’s reputation for lack of veracity (5) evidence of bias.  These exceptions reflect situations which have arisen where the court have felt it would be unjust not to allow contradiction of a witness’s testimony.  This essay will concentrate mainly on the first and most contentious exception concerning evidence of previous inconsistent statements, as it addresses the debate of credit and issue most comprehensively.

Further to this list, other exceptions have been ‘creatively’ developed, in order to avoid the finality rule, one possible example of this is Busby.  The Busby decision was never explicitly justified by the biased evidence exception to the rule, (probably because it could not be reconciled with the far older decision of Harris v Tippet) it has simply been assumed as the best explanation by most commentators and later interpretations.  Though there remains a possibility that Busby created its own new exception for evidence which shows that the police are prepared to go to improper lengths to secure a conviction.  This idea was first suggested in these terms in R v Funderburk, which took the opportunity to summarise the exceptions to the rule.

In Funderburk the accused was charged with unlawful sexual intercourse with a girl aged 13.  In her evidence she gave a vivid and moving account on how she had lost her virginity when the accused committed the offence, however it was established at the outset of the trial, that whether the complainant was a virgin at the time of the offence was not relevant to the accused’s guilt.  The issue in the case was quite simply whether F had had sex with this girl.  As such, the trial judge refused to allow the accused to adduce evidence to rebut the complainant’s claim to have been a virgin.  However, the Court of Appeal held that the evidence in rebuttal went to the issue (not merely to credit) and should have been allowed.  They based their decision on the Hitchcock test; that since the prosecution had ‘made an issue’ out of the complainant’s virginity (in this case due to the vivid manner she gave evidence) then it could be rebutted like any other relevant issue.

Funderburk illustrates the most problematic type of case in this area of law; where the complainant alleges a sexual assault but there is no other evidence.  Thus, the case depends on the two conflicting statements and the court’s only task will be to decide where the balance of credibility lies.  This situation has been called a ‘credibility contest’, as the question of credibility becomes integrally relevant to the decision made by the jury.  For this reason it has been said that in these type of cases, the distinction between questions going to credit and questions going to the issue is reduced to vanishing point.  This was likewise, the conclusion adopted in Funderburk, highlighting that although the Hitchcock test in practice is often unhelpful, the test does offer is the ability to make an instinctive decision based ‘on the prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic process’.  Though such judicial reasoning offers little help to future cases, creating uncertainty and as a result has been interpreted as an authority for a wide principle that in sexual cases generally the court should not draw too fine a line between matters going to the issue and matters going to credit. 

The implications of the case are that it sets a precedent that cross-examination about a previous inconsistent statement about a sexual matter will allow evidence in rebuttal, even if it is not central to the issue in hand.  This in essence creates a new exception to the finality rule and means that there is a special discriminatory rule benefiting defendants in sexual cases, something that is highly undesirable.  Moreover, something that one would suggest was not the intended consequence of the decision by the court in Funderburk.

Unfortunately though, it appears it is exactly this interpretation that has been adopted, most recently so in R v Nagrecha.  The case further blurred the line between credit and issue, undermining the finality rule.  The complainant alleged that the defendant, who was her employer, had indecently assaulted her on the first and only occasion she went to work for him.  Counsel for the accused wished to suggest that the complainant had previously made a series of allegedly false complaints against three other men.  She denied this in cross-examination and thus the defence sought to adduce evidence in rebuttal.   The trial judge refused, adhering to the strict approach to the finality rule because the evidence went exclusively to credit.  However, yet again the Court of Appeal overturned the decision, opting for a more liberal interpretation of the rule, favouring the opinion that evidence of the earlier complains were indeed central to the issue.

In coming to this opinion the court favoured the view of Cross & Tapper that in such cases the matters of credit and issue could not be accurately distinguished.  Stephen Seabrooke suggests this opinion is wrong and that it defies logic that evidence of complaints made independently, against other men and years previous to the offence in hand, could possibly be held to relate to the specific question of whether the accused in this case committed this indecent assault?  One would support such an argument, since the law in general is keen to protect an accused’s credit by withholding evidence of previous convictions and charges from the jury, then it appears only fair that witnesses should be offered similar protection, particularly so in sexual offences cases.  In substitution of the opinion of the Court of Appeal and that of Cross & Tapper, Seabrooke submits that it is not the difference between credit and issue that vanishes but that it is the significance of this point that vanishes. 

The Court of Appeal remains unsettled on this matter and conflicting judicial opinions are still evident.  This is apparent in the case of R v Neale, a case that Professor Temkin speculates was perhaps in response to the incisive criticism of Nagrecha.  The court however, reasserted the orthodox rule contrary to the decisions in Funderburk and Nagrecha, dismissing another attempt to circumvent the collateral finality rule. 

The defendant was charged with various sexual offences against his wife’s juvenile sister.  In an interview the complainant told the police that her sister had made her pose for indecent photographs.  Upon, investigation the allegation appeared to be without substance.  The defence therefore sort to adduce evidence of this previous false allegation, similar to that which was permitted in Nagrecha.  However, unlike Nagrecha the Court of Appeal upheld the trial judge’s opinion that this evidence was wholly separate and entirely collateral.  The presiding Evans LJ expressly declined to adopt the Funderburk analysis, even though he recognised that the finality rule was essentially pragmatic and notoriously difficult to apply. 

R v Neale can only be interpreted as a deviation away from Court of Appeal’s liberal approach in Funderburk and Nagrecha and cannot truly be distinguished on the facts.  Though, yet again it seems there is a swing in judicial opinion back to a more liberal approach, illustrated in the case of R v Tobin which reached the Court of Appeal in February last year.  The question of admissibility concerned evidence of the complainant’s good character, the validity of which was challenged by the defence.  Although this is technically beyond the ambit of the finality rule, similar judicial reasoning as that in Funderburk was applied.  Pill LJ concluded that “in sexual cases, prosecution evidence of the complainant’s background and characteristics is not inevitably excluded” and favoured a discretionary ‘fair play’ approach.  

This split in the case law clearly leaves an unsatisfactory situation, in terms of certainty and future consistency.  Moreover, the general trend following Funderburk seemed to offer an undesirable bias to defendants, in exactly the cases in which protection towards complainants should have been paramount.  This however, has to an extent been remedied by the Youth and Criminal Justice Act 1999, which renders evidence of a complainant’s sexual history inadmissible, in all sexual offences cases, unless the court gives leave, where the issue is not an issue of consent and the refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case.

Furthermore, the finality rule has recently received statutory clarification which has the possibility of significantly changing the law concerning collateral evidence which adduces evidence of bad character of a witness.  The Criminal Justice Act 2003 now provides for the circumstances in which evidence of a witness’s bad character may be brought before the jury in criminal proceedings.

Section 100 of the Act states that such evidence is admissible if and only if:

             “(a) it is important explanatory evidence,

                (b) it has substantial probative value in relation to a matter which-

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole,

or

                (c) all parties to the proceedings agree to the evidence being admissible.”

Section 100(2) goes on to define explanatory evidence as evidence which “the jury would find it impossible or difficult properly to understand other evidence in the case” without and “its value for understanding the case as a whole is substantial.” Section (3) sets out the factors to be considered when judging probative value.

The Act states that only if the requisite sections are fulfilled then bad character evidence is admissible, meaning that the common law concerning collateral evidence, which shows a witness’s bad character, is now abolished.  Although section 100 does not apply to all collateral evidence, only that which concerns bad character, this is a significant advancement in the law which should help to clarify the confusion caused by mush of the case law.

What must now be considered is how would cases such as Funderburk and Nagrecha be decided under the  2003 Act?  This means sidestepping the possible application Youth and Criminal Justice Act 1999 (it is not within the ambit of this essay to explore these changes to the law) for a moment in order to attempt to illustrate how interpretation of credit and issue will change under the new act.  It is unlikely that in either case the collateral evidence in question would have constituted important explanatory evidence, as its did not serve to aid the jury in understanding any other evidence.  The matter which the defence counsel would have to established is that the evidence had substantial probative value.  Fundamentally this would again come down to whether the court believed it to be a “matter in issue in the proceedings”.  Does this therefore indicate that very little has been substantively altered by the 2003 Act?  

Arguably decisions such as Funderburk and Nagrecha, if heard under the new law, would still come down to the critical point of whether a matter goes to credit or issue.  The only question is therefore is what affect will the Act have on the courts’ definition of credit and issue?  What the Act has given the courts is a list of factors to be considered when deciding whether a matter goes to credit or issue.  These include, rather obvious factors such the nature and number of events, and how similar the evidence is to the case in hand; all factors which no doubt were already prominent in the mind of the presiding judges in Funderburk and Nagrecha.  Although the influence these factors will have in practice is yet to be seen, one would speculate that perhaps there impact will be less than many may have wished for.

To conclude, as it stands the courts’ attitude to the distinction between issue and credit remains somewhat ambivalent.  A problem which may most significantly be attributed to Funderburk in which the court seemed to treat the matter of collateral-finality as almost a matter of instinct rather than simply the application of Pollock CB’s test in Hitchcock.  It is unsafe to have such a significant principle of criminal law dictated by an individual judge’s idea of ‘fair play’.  As Cross & Tapper highlight it has created a situation that in cases where rebuttal may be time consuming, confusing and inconclusive, rebuttal is less likely to be allowed.

What must be avoided is the risk of the courts establishing sexual offences cases as a further exception to the collateral finality rule, so as to permit further oppressive treatment of complainants.  Hopefully the 2003 Act will prevent such a situation, although interpretation of the new legislation remains speculative.  Perhaps the new legislation will further Stephen Seabrooke’s suggestion, that in cases where it is the word of one party against that of another, then the difference between credit and issue does not matter, even though at the moment the law (in the form of the finality rule) dictates that it still does. 

Words: 3932

Bibliography

Books

• C.Tapper, Cross & Tapper on Evidence, 9th edition (1999) London: Butterworths.
• A.Choo, Evidence: Text and Materials (1998) London: Longman.
• I.Dennis, The Law of Evidence (2002) London: Sweet & Maxwell.
• J.Temkin, Rape and the Legal Process (2002) Oxford: Oxford University Press.
• R.Munday, Evidence (2003) London: Butterworths.

Articles

• M.Newark, ‘Opening up the Collateral Issue Rule’ (1992) 43 Northern Ireland Legal Quarterly 166
• S.Seabrooke ‘The Vanishing Trick- blurring the line between credit and issue’ (1999) Criminal Law Review 387
• ‘Evidence going to Credit and evidence going to the Issue: R v Nagrecha’ (1998) Journal of Criminal Law 133