R v Frazer Giscombe

Where a witness gives unsworn evidence despite being eligible and required to take the oath, the evidence is not thereby converted into sworn evidence by later swearing. The error does not automatically make a conviction unsafe. Under section 56(5) of the Youth Justice and Criminal Evidence Act 1999, the Court of Appeal must assess the case in the round, considering the remaining evidence, any later sworn evidence and whether the irregularity caused unfairness. A conviction may stand where there is ample independent evidence and the irregularity has not rendered the conviction unsafe.

The applicant was convicted in the Crown Court at Nottingham of two counts of rape and sentenced to an extended determinate sentence of 16 years. One complainant’s recorded evidence was played to the jury and she was cross-examined before anyone noticed that she had not been sworn or asked to affirm. The trial judge refused an application to discharge the jury. He recalled the complainant, administered the oath, asked her to confirm the truth of her earlier evidence and permitted further cross-examination.

The applicant challenged the conviction on the basis that the earlier evidence was inadmissible and that the procedure created an unfair impression before the jury. The central issues were the scope of section 56(5) of the Youth Justice and Criminal Evidence Act 1999 and whether the convictions were unsafe.

1. Appeal dismissed. Leave to appeal against conviction was granted, but the convictions were held safe.
2. C2 was over 14 and had sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth. Section 55(2) therefore did not permit her to give unsworn evidence. Her evidence given before the oath was administered was not converted into sworn evidence by the later swearing.
3. Section 56(5) is not confined to cases in which the trial court expressly permitted unsworn evidence under section 55(2). Its wording extends to a witness who falls within the criteria in section 55(2) and should have given evidence on oath. The provision reflects a change from the pre-1999 position represented by R v Sharman [1998] 1 Cr App R 403.
4. Under section 56(5), the Court of Appeal must consider the case in the round. The initial unsworn evidence cannot, by itself, justify allowing the appeal. The later cross-examination, after C2 had been sworn, was sworn evidence, although the earlier evidence remained unsworn.
5. There was ample evidence apart from C2’s initial unsworn evidence, including C1’s account, forensic evidence, injuries, immediate complaints and distress, and the applicant’s silence at interview and failure to give evidence. The irregularity therefore did not make the convictions unsafe.
6. The judge’s decision to recall and swear C2 did not create unfairness. The jury could understand the reason for the further questioning, assess any increased firmness in C2’s answers with caution, and consider the inconsistencies relied on by the defence.

• Court of Appeal (Criminal Division): leave to appeal against conviction granted, but the appeal dismissed and the convictions held safe under section 56(5) of the Youth Justice and Criminal Evidence Act 1999.
• Crown Court at Nottingham: the applicant was convicted of two counts of rape and sentenced to an extended determinate sentence of 16 years. The judge refused to discharge the jury after C2 had given unsworn evidence, instead recalling and swearing her and allowing further cross-examination.