Editorial Committee of the Cambridge Law Journal

Convicting on the Uncorroborated Testimony of the Mentally DisorderedAuthor(s): Roderick MundaySource: The Cambridge Law Journal, Vol. 44, No. 1 (Mar., 1985), pp. 10-13Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506688 .

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10 10

The Cambridge Law Journal The Cambridge Law Journal 11985] 11985] but believing that they would either blow it up, burn it down or shoot someone in it. It svas held that this was enough to make Maxwell guilty as an accessory to the terrorists' attempt to cause an explosion. In the Northern Ireland Court of Appeal Lord Lowry C.J. said: The situation has something in common with that of two persons who agree to rob a bank on the understanding . that violence may be resorted to. The accomplice knows, not that the principal will shoot the cashier, but that he may do so; and, if the principal does shoot him, the accomplice will be guilty of murder. This judgment was unanimously approved by ehe House of Lords, one member of which adopted it as his own speech. On authority, the Pnvy Council with its "possible" is surely right. Furthennore, on principle it is surely sensible that the participant should be guilty even where he does not believe the prohibited consequerlce to be xnore probable than not at any rate where he provides major assistance in the commission of a really serious offence. People have no business to help others rob bank- messengers, or even ponces, and they should be discouraged from taking part in any activity which they know to involve even the remote chance of serious and unlawful personal violence. It does not follow, howeser, that so strict a rule would necessarily be sensible for those who furnish minor assistanceX particularly minor assistance to less serious offences. It would be silly if a jeweller could be prosecuted for selling a ring to someone he suspected might possibly be a would-be bigamist, or if a pump attendant could be prosecuted for fuelling up a car whlch he suspected might possibly have no valid M.O.T. certificate, or if a bus company could be prosecuted for putting up a bus-shelter foreseeing that the village exhibitionist might possibly use it as a place to display his wares. As Professor Willlams warns us, the law of accessoryship constantly threatens to get out of hand, and we must watch lest rules which are necessary to penalise taking a prominent part in serious crimes mechanically extend themselves down the scale to become an unreasonable fetter on normal life.

J. R. SPE.NCER. CONV1Cr}NG ON THE UNCORROBORATED TESTIMONY OF THE MENTALLY DLSORDERED THE heavily publicised televisual investigation into Rampton Hospit- al, broadcast in April 1979, led to the trials of twenty or so nurses on offences of ill-treating patients contrary to section 126 of the Mental Health Act 1959. Whilst many of these prosecutions have led to acquittals, if the recent case of Bagshaw [1984] 1 All E.R. 971 is at all

but believing that they would either blow it up, burn it down or shoot someone in it. It svas held that this was enough to make Maxwell guilty as an accessory to the terrorists' attempt to cause an explosion. In the Northern Ireland Court of Appeal Lord Lowry C.J. said: The situation has something in common with that of two persons who agree to rob a bank on the understanding . that violence may be resorted to. The accomplice knows, not that the principal will shoot the cashier, but that he may do so; and, if the principal does shoot him, the accomplice will be guilty of murder. This judgment was unanimously approved by ehe House of Lords, one member of which adopted it as his own speech. On authority, the Pnvy Council with its "possible" is surely right. Furthennore, on principle it is surely sensible that the participant should be guilty even where he does not believe the prohibited consequerlce to be xnore probable than not at any rate where he provides major assistance in the commission of a really serious offence. People have no business to help others rob bank- messengers, or even ponces, and they should be discouraged from taking part in any activity which they know to involve even the remote chance of serious and unlawful personal violence. It does not follow, howeser, that so strict a rule would necessarily be sensible for those who furnish minor assistanceX particularly minor assistance to less serious offences. It would be silly if a jeweller could be prosecuted for selling a ring to someone he suspected might possibly be a would-be bigamist, or if a pump attendant could be prosecuted for fuelling up a car whlch he suspected might possibly have no valid M.O.T. certificate, or if a bus company could be prosecuted for putting up a bus-shelter foreseeing that the village exhibitionist might possibly use it as a place to display his wares. As Professor Willlams warns us, the law of accessoryship constantly threatens to get out of hand, and we must watch lest rules which are necessary to penalise taking a prominent part in serious crimes mechanically extend themselves down the scale to become an unreasonable fetter on normal life.

J. R. SPE.NCER. CONV1Cr}NG ON THE UNCORROBORATED TESTIMONY OF THE MENTALLY DLSORDERED THE heavily publicised televisual investigation into Rampton Hospit- al, broadcast in April 1979, led to the trials of twenty or so nurses on offences of ill-treating patients contrary to section 126 of the Mental Health Act 1959. Whilst many of these prosecutions have led to acquittals, if the recent case of Bagshaw [1984] 1 All E.R. 971 is at all

This content downloaded from 185.44.77.82 on Mon, 16 Jun 2014 22:28:32 PMAll use subject to JSTOR Terms and Conditions

C.L.J. Case and Comment ll

typical one can only feel uneasy about those that have enjoyed success. Bagshaw and his two co-defendants were indicted in eleven counts for maltreating patients housed in a secure ward in the hospital. On each count in the indictment the Crown relied solely upon the unconfirmed testimony of a single mental patient. The inmates of the ward in question suffered from severe mental disorders that included epilepsy, schizophrenia, paranoia and a range of psychopathic conditions. The Court of Appeal later characterised the four prosecution witnesses varicuusly as 'icunning," "untruthful," "paranoid," "aggressive," and subject to hallucinations, observing that they were also prone to make false complaints and harbour illusory grudges. In addition, all four had been convicted of serious criminal offences. On two counts the trial judge directed the jury to acquit; but, despite a meticulous summing-up, seven of the remaining nine counts resulted in guilty verdicts. The defendants successfully appealed against cconviction, submitting that the verdicts were unsafe and unsatisfactory. Precisely because the judge in his summing-up had paid scrupulous attention to the risks attendant upon a jury trusting solely to the testimony of witnesses of this kidney, in the Court of Appeal the question arose whether it was mandatory for a judge to give the jury a full corroboration warning in cases where the Crown's entire evidence consisted of that of witnesses whose mental condition and criminal connexions fulfilled similar criteria to those of the three classes of suspect witnessaccomplices, complainants in sexual cases and sworn children-in respect of whom, as a matter of law, such a warning already must be deiivered.

Traditionally, the courts have insisted that if a witness falls within one of the suspect classes, a "precise and clear" warning must be given that it is dangerous to act on that witness's evidence, if uncorroborated (Price 119691 1 Q.B. 541; Riley (1979) 70 Cr.App.R. 1). At one time this virtually meant that the word "corroboration" had to be employed; but fashions change and there is no set form of words. In approaching the problem of the mentally disordered witness, O'Connor L.J . first cited that passage in D. P. P. v. Kilbourne where Lord Hailsham L.C. declared that the categories of suspect witnesses are not closed, adding that judges would certainly be well-advised to give full corroboration warnings whenever a witness might have an interest of his own to serve or, by implication, whenever his evidence was inherently unreliable ([I9731 A.C. 729, 740). He next referred to D.P.P. v. fifester where Lord l)iplock, recognislng that the exact meaning of a legal term like "corrobora- tion" might elud a jury, observed that a judge must tailor his warning to the individual circumstances of the case (11973] A.C. 296, 328. See also, O'Reilly (1967) 51 Cr.App.R. 345, 349 per Saimon

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The Cambridge Law Journal 1l98sl 12

L.J.). One was thus prepared for the conclusion that, although the mentally disordered do henceforth constitute a fuither suspect-class, the judge's failure on this occasion to refer explicitly to "corrobora- tions' was unimportant since his "impeccable direction to the jury" (p. 973) warned them in the most pointed terms of the perils of convicting on the unconfirmed testimony of inmates of a criminal asylum (see pp. 975-976). The Court of Appeal, however, aban- doned axioms of conventional logic and, instead, ruled that it would not elevate mental patients into an additional suspect category, but that in this particular case the convictions must nevertheless be quashed since the witnesses, detained as patients in Rampton, so clearly fulfilled the criteria which justify the requirement of the full warning in respect of witnesses within accepted categorles that nothing short of that full warning would have sufficed here.

In Bagshaw the court looks to have engineered the right result, but at the cost of logic and principle. In practice, the corroboration warning demanded by the Court of Appeal would not have added an iota to the trial judge's careful direction to the jury-unless, unmindful of the House of Lords-exhortations in D.P.P. v. Hester, he had actually included in it the discredited word "corroboration " This commendable desire to achieve the just result can confuse matters for the future and possibly explains how a differently constituted court dismissed appeals against conviction in another similar case from Rampton a few months later (Spencer et a!., The Times, 8 November 1984). But Bagshaw is also productive of some intnguing social calculus. For example, English rules of evidence can now be said to postulate that, as a class, sexual complainants are deemed less reliable witnesses than the mentally disturbed; that children judged competent to give sworn testimony are less credit- worthy than parties compulsorily hospitalised under the Mental Health Act 1983; that an accomplice's motives for Iying create greater risk of wrongful conviction than a mental patient's fertile lucubra- tions. These general propositions of course ring entirely false. Moreover, one's misgivings do not lessen if one surveys recent developments in a jurisdiction like Canada where a judge is now forbidden to give a corroboration warning in the case of sexual complainants (Canadian Criminal Code, s.264 4) and where it is entirely discretionary in the case of accomplices (Vetrovec (1982) 67 C.C.C. (2d) 1). There is obviously scope for dispute both over some of the categories of suspect witness and, indeed, over the very continuance of the current formal corroboration rules (see, e.g., Cross on Evidence, 5th ed. (1979) pp. 21S218). But even if it can make for complex judicial dlrections (Beck [19821 l All E.R. 807, 812 per Ackner L.J ), so long as the law adheres to the notion that certain

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C.L.J. C.L.J. Case and Comment Case and Comment 13 13

classes of witness do regularly prove untrustworthy, it should endeavour to retain a sense of social proportion and evolve consistently witlSin those self-imposed logical confines. Whilst refus- ing leave to appeal to the House of Lords, the Court of Appeal did certify under section 33(2) of the Criminal Appeal Act 1968 that a point of law of general importance was involved in the case. Given that the courts have hitherto declined to extend the corroboration warning to such deserving categories as co-defendantss agents provocateurs, villains and identification witnesses, it would be odd if for once sense prevailed and an exception were created even for that class of prosecution witness whose mental processes are sadly out of kiNter.

RODERICK MUNDAY.

THE MATRIMONZAL AND FAMILY PROCEEDINGS ACr 1984

CoNrRovEsslAL legislation in the field of divorce was initiated in former times by private members of Parliament. Not so the Act of 1984. Beset though it was by widespread misgivings at virtually all stages of its parliamentary career, it had been promoted by the Lord Chancellor; and as soon as it reached the statute book his Department issued a helpful explanatory leaflet, "Your Questions Answered," to allay public anxiety (but which asserts a little tenelentiously that the changes made were i'necessary").

The Act, despite its controversiaI nature, is largely based on Law Commission Reports (Law Com. Nos. 112, 116 and 117; Scot. Law Com. No. 72). Parts IlI and IV, when in force, will enable our courts in certain circumstances to order financial relief after an overseas court 12as dissolved a marriage, which seems a welcome reform not infringing the principle of comity. Part V extends the matrimonial jurisdiction of county courts to include defended divorce petitions and authorises the transfer of wardship cases from the High Court to a county court.

Part I makes two changes to the time restrictions on presentation of petitions The more modest enables a court to extend tlle period within which proceedings must be started to annul a toidable marriage (on a ground other than incslpacity or wilful refusal to consummate, where no restriction exists) if the petitioner has suffered from mental disorder. The other, whsch relates to petitions for divorce, will have a far wider impact: section 1 substitutes a one year absolute bar for the former three year discretionary bar. The case for this reform was surely far less strong, involving as it must do a further weakening of the marriage bond and a probable boost to a divorce rate which is already appallingly high. (One recalls the

classes of witness do regularly prove untrustworthy, it should endeavour to retain a sense of social proportion and evolve consistently witlSin those self-imposed logical confines. Whilst refus- ing leave to appeal to the House of Lords, the Court of Appeal did certify under section 33(2) of the Criminal Appeal Act 1968 that a point of law of general importance was involved in the case. Given that the courts have hitherto declined to extend the corroboration warning to such deserving categories as co-defendantss agents provocateurs, villains and identification witnesses, it would be odd if for once sense prevailed and an exception were created even for that class of prosecution witness whose mental processes are sadly out of kiNter.

RODERICK MUNDAY.

THE MATRIMONZAL AND FAMILY PROCEEDINGS ACr 1984

CoNrRovEsslAL legislation in the field of divorce was initiated in former times by private members of Parliament. Not so the Act of 1984. Beset though it was by widespread misgivings at virtually all stages of its parliamentary career, it had been promoted by the Lord Chancellor; and as soon as it reached the statute book his Department issued a helpful explanatory leaflet, "Your Questions Answered," to allay public anxiety (but which asserts a little tenelentiously that the changes made were i'necessary").

The Act, despite its controversiaI nature, is largely based on Law Commission Reports (Law Com. Nos. 112, 116 and 117; Scot. Law Com. No. 72). Parts IlI and IV, when in force, will enable our courts in certain circumstances to order financial relief after an overseas court 12as dissolved a marriage, which seems a welcome reform not infringing the principle of comity. Part V extends the matrimonial jurisdiction of county courts to include defended divorce petitions and authorises the transfer of wardship cases from the High Court to a county court.

Part I makes two changes to the time restrictions on presentation of petitions The more modest enables a court to extend tlle period within which proceedings must be started to annul a toidable marriage (on a ground other than incslpacity or wilful refusal to consummate, where no restriction exists) if the petitioner has suffered from mental disorder. The other, whsch relates to petitions for divorce, will have a far wider impact: section 1 substitutes a one year absolute bar for the former three year discretionary bar. The case for this reform was surely far less strong, involving as it must do a further weakening of the marriage bond and a probable boost to a divorce rate which is already appallingly high. (One recalls the

This content downloaded from 185.44.77.82 on Mon, 16 Jun 2014 22:28:32 PMAll use subject to JSTOR Terms and Conditions