R v Bingham

An accused who enters the witness box and is sworn under article 4 of the Criminal Evidence (Northern Ireland) Order 1988 becomes available for questioning under oath. The prosecution and any co-accused with a legitimate interest may cross-examine, even if defence counsel asks no questions in chief.

A refusal to permit such cross-examination is an error. It does not, however, make the trial unfair where the accused could have answered the allegations by giving evidence in chief, no right to cross-examination was asserted, and guilt was established without any adverse inference from silence.

Bingham and Cooke were convicted of murder following a trial before Higgins J. They denied knowledge of the killing. The judge found them guilty on the prosecution evidence without drawing an adverse inference from their silence under article 4 of the Criminal Evidence (Northern Ireland) Order 1988.

Each appellant entered the witness box and was sworn after being called upon under article 4. Defence counsel asked no questions. The judge refused the prosecution permission to cross-examine. The Court of Appeal in Northern Ireland dismissed their appeals and upheld that ruling.

The certified question was whether a judge may refuse to permit cross-examination of a defendant duly sworn under article 4 because defence counsel has asked no questions.

1. Both appeals dismissed unanimously. Lord Lloyd of Berwick delivered a leading speech. Lord Hope of Craighead agreed and gave additional reasons. Lord Steyn, Lord Hobhouse of Woodborough and Lord Millett agreed with both speeches.

2. Per Lord Lloyd and Lord Hope, the judge erred by refusing the prosecution permission to cross-examine. Once an accused has entered the witness box and been sworn under article 4 of the Criminal Evidence (Northern Ireland) Order 1988, the accused is available for questioning under oath. The prosecution and any co-accused with a legitimate interest may put competent and relevant questions. This remains so when defence counsel has conducted no examination in chief.

3. Per Lord Hope, article 4 was framed against the ordinary rules of adversarial criminal procedure. A witness must ordinarily be sworn before giving evidence and, once sworn, must answer competent and relevant questions from the parties or the judge. Bingham could not be treated as having failed to give evidence merely because his counsel asked no questions. He first had to be given an opportunity to answer questions. The reasoning in The King v James Paul; The King v Robert McFarlane [1920] 2 KB 183 and the Scottish practice illustrated by Her Majesty's Advocate v Milne supported that conclusion.

4. Per Lord Lloyd, the erroneous refusal of cross-examination did not render the trial unfair. The judge had found guilt proved beyond reasonable doubt without relying on an inference under article 4. If Bingham wished to refute the prosecution allegations and expose himself to cross-examination, he could have given evidence in chief. Cooke's position was indistinguishable.

5. Lord Lloyd added, obiter, that the evidence called for an answer and that an adverse inference could, if necessary, have been drawn under article 4 or at common law. That issue did not arise for decision because no adverse inference contributed to the convictions.

1. House of Lords: Dismissed both appeals unanimously. It held that the trial judge should have permitted cross-examination, but that the error did not affect the safety or fairness of the convictions.

2. Court of Appeal in Northern Ireland: Dismissed Bingham's and Cooke's appeals. It upheld the judge's assessment of the principal prosecution witness and agreed with his ruling against cross-examination.

3. Trial before Higgins J: Convicted Bingham and Cooke of murder. The judge found guilt proved without an adverse inference under article 4 of the Criminal Evidence (Northern Ireland) Order 1988, although he considered that such an inference would have been available if required.