Wilkinson, R (on the application of) v Director of Public Prosecutions

A judge of fact may reject evidence merely because it was not challenged in cross-examination. The judge must consider that the witness had no opportunity to answer the contrary case, but must remain impartial and avoid descending into the arena. An advocate’s failure to put the defence case to prosecution witnesses is a professional failing; it does not automatically require the court to accept the opposing evidence. The central question is whether the trial was fair and whether the absence of cross-examination disadvantaged the relevant party. Where the prosecution case was known and the defendant had an opportunity to give live evidence, an unchallenged account may still be rejected.

The claimant appealed by way of case stated against her conviction at Birmingham Magistrates’ Court for assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. During interview under caution she gave an account which, if accepted, would have supported an acquittal. At trial she gave no substantive live evidence, but confirmed on oath that her interview account was true. The prosecution did not cross-examine her.

The district judge rejected her evidence and convicted her. The questions for the High Court were whether the judge was bound to accept evidence which had not been challenged and whether he could convict where that evidence, if accepted, would have amounted to a defence.

1. Appeal dismissed. Both questions in the case stated were answered affirmatively. The district judge was entitled to accept or reject the evidence before him, including the claimant’s evidence which had not been tested in cross-examination.
2. An advocate acting for the defence has a professional duty to put to prosecution witnesses the conflicts between the defence case and their evidence, giving them an opportunity to explain or answer the alleged mistake, confusion or dishonesty. The advocate must also make clear what prosecution evidence is disputed. The latter obligation is particularly important before a jury, but is less important before a professionally qualified judge.
3. The judge of fact must take account of the fact that an unchallenged witness had no opportunity to comment on the contrary case. It will normally be appropriate for the disputed issue to be raised with the witness. The judge must not intervene so extensively as to become counsel for either side.
4. R v Hart [1932] Cr App 202 did not establish that cross-examination was required in every case. It was consistent with the principle that the witness must be challenged, or that it must at least be made clear while the witness was in the box that the evidence was not accepted. Here, the prosecution’s continuing case made that sufficiently evident.
5. The failure to comply with the advocates’ professional duty did not compel acceptance of the opposing evidence. The relevant questions were whether the trial was fair and whether the claimant had been disadvantaged. Her account and the prosecution case were known, and she had an opportunity through counsel to give live evidence. There was therefore no unfairness or material disadvantage.
6. No order for costs was made.

• High Court (Administrative Court): appeal by way of case stated dismissed; the conviction at Birmingham Magistrates’ Court was upheld.