R v Bingham; R v Cooke

The appeals raised a point about the effect of article 4 of the Criminal Evidence (Northern Ireland) Order 1988 and the position of a defendant who is sworn to give evidence under that article but is not examined in chief by his own counsel. The House of Lords held that once a defendant has entered the witness box and has been sworn in accordance with article 4 he is available to be questioned by the prosecution (and by others with a legitimate interest) in the same way as any sworn witness. The trial judge was therefore wrong to refuse the prosecution leave to cross-examine a defendant sworn under article 4 where defence counsel did not ask any questions. However, the appeals were dismissed because the trial judge did not rely on an adverse inference under article 4, the prosecution case proved the appellants guilty beyond reasonable doubt, and any error in refusing cross-examination did not render the trial unfair.

Background and facts:

• The appellants, Graham Carlo Bingham and Samuel David Cooke, were convicted by Higgins J. on 20 December 1994 of the murder of Ann Marie Smyth. The killing was held to be sectarian and to have occurred in Cooke's house in Belfast. Three others present admitted being there; their appeals were later allowed by the Court of Appeal (Northern Ireland) and convictions reduced to assisting an offender. Bingham and Cooke denied knowledge and challenged aspects of their trial.

Procedural posture:

• The appeals before the House of Lords were from the Court of Appeal (Northern Ireland). The certified question concerned whether a judge can refuse to permit cross-examination of a defendant who has been sworn under article 4 of the Criminal Evidence (Northern Ireland) Order 1988 on the ground that defence counsel has not conducted an examination in chief.

Issues framed by the court:

• Whether a defendant sworn under article 4 is effectively immune from cross-examination by the prosecution if his own counsel does not examine him in chief.
• Whether the judge was entitled to treat an absence of examination in chief as equivalent to the defendant refusing to give evidence for the purposes of drawing adverse inferences under article 4.
• Whether any ruling refusing cross-examination rendered the trial unfair and required the convictions to be quashed.

Court's reasoning and subsidiary findings:

• The Lords analysed article 4(2)–(4) (in its unamended form) against basic rules of criminal evidence: a witness must be sworn and, once sworn, is available to answer competent questions put by any party with a legitimate interest.
• The trial judge's provisional view that a defendant sworn under article 4 becomes the court's witness and hence could not be cross-examined was rejected. Authority (including The King v James Paul; The King v Robert McFarlane and authorities from Scottish practice) supports the proposition that a sworn witness who has not been examined in chief may still be cross-examined by other parties.
• The Lords accepted that the trial judge might properly have drawn an adverse inference at common law or under article 4 had it been necessary, but he did not do so because he was satisfied the prosecution had proved guilt beyond reasonable doubt. Any error in refusing cross-examination did not make the trial unfair in the particular circumstances.

Remedy sought:

• The appellants sought to overturn their convictions on the ground that they had been denied a fair trial by the refusal to permit cross-examination.

Appeals dismissed. Although the trial judge was wrong to refuse the prosecution leave to cross-examine a defendant who had been sworn under article 4 but not examined in chief by his own counsel, that error did not render the trial unfair in the circumstances. The judge had not drawn an adverse inference under article 4 and was satisfied beyond reasonable doubt of the appellants' guilt; accordingly the convictions stand.

On appeal from the Court of Appeal (Northern Ireland). The appeals to the House of Lords followed convictions at trial (Higgins J.) dated 20 December 1994; the Court of Appeal (Northern Ireland) had dealt with related appeals of co-defendants and the position of the appellants prior to this final appeal is described in the judgment.