ISSUE 54 EWJ web - Journal - Page 24
the only other witness to a murder, Winn LJ suggested
that any such comment was improper (at 1535).
Whereas Gallagher [1974], a trial where the defendant
offered an alibi defence with 4 other witnesses, but
called none of them, Megaw LJ noted that a comment
could be made if worded in a suitable way (at 1211). In
Wilmot (1989) 89 Cr. App. R. 341, where the defendant refused to wave privilege and call their solicitor
after being accused of a recent fabrication at trial,
Glidewell LJ stated that “it would be rare” to make
such a comment (at 352).
effect of the judge’s direction would be to reverse the onus of
proof are wide of the mark.”
13. In short, “the balance of authority clearly favours
the view that comment on the failure by the defence
to call evidence that would be relevant to a contested
issue in the case may be the subject of comment. However, it is important that the direction to the jury is
worded with great care, both to ensure that the jury
do not engage in improper speculation about why the
witness(es) were not called, and also to ensure that
they do keep in the front of their minds that the burden is on the Crown to prove that the defendant is
guilty, not on the defence to prove that the defendant
is innocent” (P Hungerford-Welch, ‘Closing speech:
R. v Watson (Roshane)’ Crim. L.R. 2023, 783, 787).
11. Khan [2001], considered the balance that must be
struck, particularly in weighing off a jury’s speculation
with the other factors for the defendant not calling a
witness such as: poor credibility of the witness; reluctance of association with the witness; or, availability of
the witness.
Lessons for practitioners
14. The value of this case lies in its review of the
authorities, and clear statement that comment may be
permissible, depending on the circumstances, rather
than there being an absolute bar. The lesson for defence practitioners is that they should consider reasons why it would be unfair to allow such comment in
their particular case.
Conclusions
12. In Khan [2001], the Court referred to the
commentary on Wright by Professor Sir John Smith:
”Where the defendant’s story involves close relatives or friends
who are not charged or called as witnesses, a jury might naturally wonder why they have not appeared to testify in support
of their accused relative or friend. They may think that the
reason must be that they would not support his story—why otherwise should they not be there? If a jury were to think along
these lines, they would not be reversing the burden of proof. If
they were to conclude that, bearing in mind the whole of the
evidence, and the surprising absence of testimonial support
for the defendant, they were quite certain he was guilty, they
would have applied the judge’s direction on burden of proof
exactly as they should. If they have erred, it is not because they
have misapplied the law governing onus, but because they
have attached unjustifiable relevance to the absence of the
expected witnesses. The arguments in the present case that the
15. Counsel must take care not to undermine the
judge's legal directions in their closing address to the
jury. Due circumspection is required. Comment will
not always be appropriate and may in certain circumstances call for immediate judicial rebuke and challenge (Watson [2023] at 41).
Author
Paul Patterson
Pupil Barrister 3PB
01962 868884
Paul.patterson@3pb.co.uk - www.3pb.co.uk
Mrs Amanda Pocknell
Professor Vee Prasher
Care Expert
Professor and Consultant Psychiatrist in
Neurodevelopmental/Learning disability
RGN BSc (Hons) ENB 176; ENB 998.
MBChB, MMEDSc, MD, PhD, FRCPsych F.IASSID
A graduate nurse with over 35 years' experience in the NHS, Private, Private
Medical Insurance; Medico-legal Nursing Home sectors and specialist
Expert Witness in Learning Disability, Down syndrome, Neuropsychiatry,
Developmental Disorders (eg ADHD, Autism), Epilepsy, birth trauma, Congenital
abnormalities, Cerebral palsy, GMC Investigations.
qualifications and experience in Expert Witness, Rehabilitation, Case Management,
Healthcare Management, Counselling and Operating Department Nursing.
Amanda provides Nursing Breach of Care, Causation and Liability Reports;
Visiting Professor of Neuropsychiatry and Consultant Psychiatrist in
Neuro-developmental Psychiatry.
Condition and Prognosis reports on Nursing care; Nursing Care Needs Reports,
Loss of Services Reports; Care and Services Reports; Care and Case Management
Section 12 Approved, on the Specialist Learning Disability Register.
Reports;Rehabilitation Reports, Immediate Needs Assessments, and Aids and
Equipment Reports for individuals sustaining Multiple Trauma, Catastrophic Injury,
10-15 reports per year.
Acquired Brain Injury and Personal injury on behalf of Insurers, Solicitors and
Employers.
Quick turn around available.
My Specialist Areas of work include: Operating department nursing, Nursing care,
Research based service:Research interests include investigating aspects of biological, physical and
psychiatric health morbidity in adults with learning disability; in particular in adults
with Down syndrome. Over 20 years involvement in research investigating the
aetiology, the diagnosis and the treatment of Alzheimer's disease in older adults
with Down syndrome. At present involved in a number of treatment trials for
dementia in adults with Down syndrome, involved in genetic, biological and
neuroimaging studies.
Orthopaedic, Multiple trauma, Spinal Injury – paraplegic and quadriplegic, acquired
brain injury, Psychological Trauma, Rehabilitation for return to work.TVT/TVO
cases.
Case load split: 10% Single Joint Expert, 45% Claimant and 45% Defendant.
Tel: 01233 332756 - Mobile: 07793 009689
Email: amanda.l.pocknell@gmail.com
Professor Prasher has published 14 textbooks.
Website: www.alpcareconsulting.co.uk
Address: t/a ALP Care Consulting, 23 Bluebell Road,
Contact: Vee
Tel: 07811 367573
Mobile: 07811 367573
Email: vprasher@compuserve.com
Alternate Email: vprasher@hotmail.co.uk
Address: 20 Russell Road, Moseley, Birmingham, West Midlands, B13 8RE
Area of work: Nationwide, can travel
Kingsnorth, Ashford,TN23 3NW
EXPERT WITNESS JOURNAL
22
APRIL 2024