Mar 19, 2018

Unsworn Dock Statements - Colin Bobb-Semple

An Unsworn Dock Statement + A ‘Cut-Throat’ Defence = A Recipe for a Gross Miscarriage of Justice?Description:

Colin Bobb-Semple, LLB (Hons), LLM, MA,
Solicitor/Higher Courts' Advocate - England and Wales (non-practising); Attorney-at-Law - Guyana, South America (non-practising); Solicitor & Barrister - Eastern Caribbean: St Christopher and Nevis (non-practising); Former Law Revision Consultant to the government of Guyana (2010-2012);  
Lecturer in Law, School of Law and Criminology, University of West London

In a number of Commonwealth jurisdictions, the law provides for a defendant in a criminal trial to make an unsworn statement from the dock. This is an old English Common Law right, which is still upheld in some states, even though it was abolished in England and Wales in 1982.
This essay demonstrates the devastating exercise of this right by a co-defendant in the murder trial of R v George & Another in Reading Crown Court, England, in 1977, where both defendants were convicted of burglary and murder, and in which the author was the then practising solicitor instructed to represent George.
 In this essay, the author also endeavours to point out to the following CARICOM and other jurisdictions, including Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, and Jamaica, that the right of a defendant to make an unsworn dock statement is an anachronism which should be abolished, as the potential for ‘cut-throat’ defences, gross abuses and miscarriages of justice, is immense.
The following are examples of the law providing the right of an accused to make an unsworn statement from the dock, applicable in the CARICOM states of Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, and Jamaica.
 Antigua and Barbuda: Section 6(g) of the Evidence Act, Cap. 155, provides -
 “Person charged and wife or husband a competent witness
 Nothing in this section shall affect … any right of the person charged to make a statement without being sworn.”
Barbados: Section 22 of the Evidence Act, Cap 121, provides -
 “ Competence and Compellability of witness
 Unsworn evidence in criminal proceedings
 22(1) In criminal proceedings, an accused may give unsworn evidence.
 (2) An accused who gives unsworn evidence may not also give sworn evidence unless there are special circumstances and the court gives leave.
 (3) In giving unsworn evidence, the accused may read from a statement in writing and may use notes.
 (4) After unsworn evidence has been given, the attorney-at-law may, with the leave of the court, direct the accused’s attention to matters as to which the accused has not given unsworn evidence or as to which the accused might wish to give further unsworn evidence.
 (5) An accused who has given unsworn evidence shall not be cross-examined.
 (6) Unsworn evidence given by an accused may not be used for or against any other accused.
 (7) Subsections (5) and (6) do not apply where the accused gives both sworn and unsworn evidence.
 (8) Without affecting any other application
(a) of the Perjury Act, Cap. 142; and
(b) of the offence of perverting the course of justice,
section 3 of that Act and the common law respecting the fabrication of false evidence apply in relation to unsworn evidence as they apply in relation to sworn evidence.”
 Belize: Section 58(g) of the Evidence Act, Cap. 95, provides -
 “Competency and Privilege of Witnesses …
 nothing in this Act shall affect … any right of the person charged to make a statement without being sworn.”
 Dominica: There appears to be reliance on the old English common law right for a defendant to make an unsworn statement from the dock.
 Grenada: Section 119(5) of the Evidence Act, Cap 92, provides -
 “Competency as witnesses of parties to civil suit and their wives or husbands …
 Nothing in this section shall affect … any right of the person charged to make a statement without being sworn.”
 Guyana: Section 52(h) of The Evidence Act, Cap. 5.03, provides –
 “nothing in this Act … shall affect any right of the person charged … to make a statement without being sworn.”
 Jamaica: Section 9(h) of the Evidence Act provides -
  “Competency of Witnesses …
 Nothing in this Act shall affect … any right of the person charged to make a statement without being sworn.” 
 In the British Overseas' Territory of Montserrat, Section 6(g) of the Evidence Act, Cap. 2.08, provides -
“Person charged and wife or husband a competent witness -
Nothing in this section shall affect … any right of the person charged to make a statement without being sworn.”
Notwithstanding this provision, however, in a most remarkable decision, the Hon. Justice Iain Morley QC in R v Dwayne Irish in the High Court of Montserrat on 8th November 2016, relied on the absence of reference to the unsworn statement in the provisions in the Criminal Procedure Code No 2, to rule that unsworn statements would "no longer be permitted in criminal trials in Montserrat":-
"[12] It follows in my judgment that the deliberate omission from CPC No 2 of the ability to make an unsworn statement means that an unsworn statement is no longer permissible.
[13] Mr Brandt argued that there needs to be specific language in statute or in the CPC that an unsworn statement is no longer permitted, on the 
principle that it has long been allowed, 
should not be rendered impermissible lightly, and what is not expressly prohibited is permissible. 
I reject this submission. The deliberate omission of the clause clearly renders an unsworn statement henceforth impermissible.
[14] This is in keeping with its abolition in most Common Law jurisdictions for the understandable reason it allows evidence which cannot be tested by cross-examination. Moreover, the unsworn statement emerged in Common Law prior to 1898 at a time when it was not permissible for a defendant to give evidence in his or her own defence, for fear swearing an oath, and then lying, would imperil his or her soul, leading to eternal damnation. Such times are long over, and so too the need for unsworn statements.
[15] For reasons of the above analysis of CPC No 2, unsworn statements will no longer be permitted in criminal trials on Montserrat." (The Hon. Justice Iain Morley QC, High Court Judge )
In Director of Public Prosecutions v Walker [1974] 1 WLR 1090, (Lord Wilberforce, Lord Diplock, Lord Cross, Lord Salmon and Sir Eric Sachs) on an appeal from the Court of Appeal of Jamaica, Lord Salmon, in delivering the judgment of the Board of the Privy Council, gave guidance on a judge’s direction to the jury regarding the value of an unsworn statement of an accused:-
“The Court of Appeal has indicated that it would be in the public interest if this Board were to give some guidance on the “objective evidential value of an unsworn statement” by an accused, since it has for some time been the standard practice in Jamaica to keep the accused out of the witness box. Much depends on the particular circumstances of each case. ... There are however cases in which the accused makes an unsworn statement in which he seeks to contradict or explain away evidence which has been given against him or inferences as to his intent or state of mind which would be justified by that evidence. In such cases (and their Lordships stress that they are speaking only of such cases) the judge should in plain and simple language make it clear to the jury that the accused was not obliged to go into the witness box but that he had a completely free choice either to do so or to make an unsworn statement or to say nothing. The judge could quite properly go on to say to the jury that they may perhaps be wondering why the accused had elected to make an unsworn statement; that it could not be because he had any conscientious objection to taking the oath since, if he had, he could affirm. Could it be that the accused was reluctant to put his evidence to the test of cross-examination? If so, why? He had nothing to fear from unfair questions because he would be fully protected from these by his own counsel and by the court. The jury should always be told that it is exclusively for them to make up their minds whether the unsworn statement has any value, and, if so, what weight should be attached to it; that is for them to decide whether the evidence for the prosecution has satisfied them of the accused's guilt beyond reasonable doubt, and that in considering their verdict they should give the accused's unsworn statement only such weight as they may think it deserves.” (Lord Salmon, at p. 1095)
This decision is also binding on those states for which the Privy Council is also the highest Court of Appeal, e.g. Antigua and Barbuda and Grenada.

R v GEORGE: A miscarriage of justice?
The case of R v Andrew Hipolite George (1979) 68 Cr App R 210; [1979] Crim LR 172; The Times, Oct 31, 1978, was one of a number of cases which caused some consternation in England. The trial was held at Reading Crown Court before Mr Justice Thesiger and a jury. The appeal was heard in the Court of Appeal before Lord Chief Justice Widgery, Lord Justice Bridge, and Mr Justice Wien.
The brief facts of the case were that there was a burglary of a house in North London which involved the binding and gagging of an elderly woman, causing her death from a heart attack. Leroy Gilpin, (LG) aged 25 and Andrew George (AG) aged 19, were charged with burglary and murder. LG was the deceased's former next door neighbour. LG pleaded guilty to burglary and not guilty to murder. LG’s palm print had been found at the deceased’s house, but there was no forensic evidence against AG. AG was Educationally Subnormal. He pleaded not guilty to burglary and murder.
 Near the end of the defence case, LG made an unsworn statement from the dock. He said that AG broke into the victim's house - AG had put socks on his hands - AG opened the front door and let him (LG) in - AG tied the woman up – He (LG) cut the rope, tried to let the woman go, left AG in the house to release the woman - AG was the last to leave the house – AG later told LG that he had let the woman go - ...
The jurors were directed by Mr Justice Thesiger in words to the effect:
"Make what you will of the statement as regards the Defendant LG who made the statement, but entirely disregard what you heard about the co-defendant AG - it is not regarded as evidence to weigh in the scales against AG ..."
 Once the jury had heard the damaging evidence, however, it would have been practically impossible for them to engage in the mental gymnastics required to disregard the damning statement made by the older man, LG, which had incriminated the younger person, AG.
 It is submitted that this would all have been very confusing for a jury, as the statement had practically the same effect as sworn evidence. The 25-yr-old man, LG, had incriminated AG (an Educationally Subnormal 19-yr-old), and said that he was the ringleader.
 The damaging statement of LG had an enormous impact on everyone in the court. It was devastating for AG and his legal team. Of course, AG’s counsel were hampered and could not cross examine LG, as his statement was unsworn.
 During a weekend adjournment, immediately after the statement had been made, AG’s father went to visit LG and had a conversation with him. Following that meeting, AG’s counsel, Mr Daniel Hollis QC and Mr Samuel Knox- Hooke, made application to call evidence in rebuttal of the statement of LG. Mr Justice Thesiger refused the application, however, on the ground that evidence in rebuttal could not be admitted, as the unsworn statement from the dock by LG was not evidence.
 It is submitted that in view of the obvious prejudice which had been caused to AG’s case, Mr Justice Thesiger should have severed the indictment and ordered a separate trial for AG. The Commentary in the Criminal Law Review Report on the case suggests:
"the only alternative would be to discharge the jury from giving a verdict against G and to have him retried separately." ([1979] Crim LR 173).
Lord Chief Justice Widgery, in delivering the judgment of the Court of Appeal to refuse Andrew George leave to appeal, stated as follows:-
"But one thing which can be said with certainty is that the problem of a statement from the dock so far as a co-accused is concerned is exactly the same as the problem which arises when a co-accused has made some statement not in Court which damages a co-accused.
We think ... that we should treat these two situations alike. In each case the handicap imposed upon the defendant is that he cannot cross-examine the so-called witness. The more one looks at these two situations the more obvious it becomes that they are on a par." (Lord Widgery, p. 211)
It is submitted that their Lordships erred in their decision in the Court of Appeal, when they ruled that the problem of a statement from the dock was "exactly the same" as the problem which arose when a co-accused had made some statement not in Court which damaged a co-accused. The Court decided to treat these two situations "alike" and said that they were "on a par." Their Lordships may not have taken that view, however, had they been in court during the trial when LG made his dramatic and devastating statement which branded AG as the ringleader and cast the culpability firmly upon him. Their Lordships may well have agreed that it could not be said to be "on a par" with an out of court statement which was read in court.
The case was well publicised – It was reported in The Times (16 Nov. 1977; 31 October 1978) and in the local press. It was discussed in Michael Cohen's article "The Unsworn Statement From The Dock" [1981] Crim LR 224. The BBC’s 'Rough Justice' Team investigated the case, and Martin Young and Peter Hill wrote a book Rough Justice which was published in 1983 by BBC Ariel Books, ISBN 0563201 29 0. The authors discussed the case in the chapter 'The Boy Who Protested Too Much' (pp. 53-74).

 In 1977 the government had convened the Royal Commission on Criminal Procedure (Philips Commission, 1977-1981) which recommended the abolition of the Unsworn Statement in 1981.
 Sir Charles Fletcher-Cooke, QC, MP, a leading Queen’s Counsel and an outstanding Criminal Law practitioner, who had been briefed by the author in another murder case in 1977 which involved contested identification evidence, and in which five defendants had been acquitted (West Indian World Nov/Dec 1977), made a number of observations in 1981, during the debate in the House of Commons on the Royal Commission on Criminal Procedure:
 “On the whole, the report is good. I am pleased that it recommends the abolition of the practice of making unsworn statements from the dock. That is a relic of the days when the prisoner was unable to go in the witness box and give evidence on his own behalf. However, it has become an abuse, by which the accused can utter all sorts of uncontroverted and incontrovertible slanders against not only those in authority, but his own co-defendants. He cannot be cross-examined on behalf of those co-defendants and he may get away with frightful liberties. I see no reason why such an absurd anomaly should persist for another day.”
 Mr Patrick Mayhew, then Minister of State, Home Office, observed:
 “I have great sympathy with those who call for the abolition of unsworn statements from the dock. I believe that they are widely abused.”
(See the Criminal Procedure (Philips Report) HC Deb 20 November 1981 vol 13 cc 527-9).
Lord Diplock, one of the eminent judges who was a member of the Board of the Privy Council in the case of R v Walker (1974) noted above, made it clear in the House of Lords debate on the Criminal Justice Bill on 2 July 1982, that he was firmly in favour of abolition of the right to make unsworn statements from the dock:
“The abolition of this historical anachronism was, I believe, the least controversial of the proposals of the Criminal Law Revision Committee in 1972. Indeed, but for the fact that I understand that one Member of your Lordships' Committee is to oppose it, I should have thought that it was devoid of any controversial content. I do not know a single judge who approves of it. It has nothing to do with the so-called right of silence. What it has to do with is the right to lie to the court with impunity.
The Criminal Law Revision Committee said in 1972 that the practice very seldom occurred. During the 10 years that I was judging criminal cases—a period which, I fear, finished in 1961- I never remember it happening. But of recent years it has become a ploy in certain courts—by no means all of them, I am glad to say. What happens is that it enables a character destructive cross-examination of prosecution witnesses. It may be the victim in a case of rape. Often it may be a co-defendant. It is very frequently the police. After the suggestions have been made to witnesses and denied, the accused, instead of going into the witness box, where he would be faced by cross-examination as to the truth of the allegations and where he would put his character in issue, repeats his allegations from the safety of the dock, sometimes in a statement written out for him by counsel.
This right, surviving from the Act of 1898, is not only anachronistic: it is confusing to the course of justice, as the kind of direction that has to be given to the jury illustrates, and it is gravely unjust to innocent witnesses who appear in court. It is not a moment too soon to abolish it.” (Lord Diplock, HL Deb 02 July 1982 vol 432 cc 464-539).
Sir Charles Fletcher-Cooke, QC, MP, made further statements in the House of Commons, during the debates on the Criminal Justice Bill on 21 October 1982:-
 “If it were only a question of the balance between the police and the accused, I would perhaps not be supporting the Government quite as strongly as I am. However, it is much more than that. It is a question of the gross unfairness to co-defendants which, to my mind, clearly pushes down in favour of the abolition of this right. I have been engaged in many trials in which I have heard some accused person with a long record abuse his right to make a statement from the dock in order to attack a co-accused and try to offload the blame upon him, a person who may ... have no record at all. It is grossly unfair on such a co-accused when that happens. Neither he nor his counsel can cross-examine and his co-defendant can get away with murder.
… I know that the hon. Gentleman will say that it is the duty of the judge to warn the jury that such a statement is not evidence against a co-accused; and, of course, he is right about that. Such a statement is not evidence...
it seems an enormous injustice to other persons, who must be presumed innocent until the jury declare them guilty. That is what we are discussing. It is not right that such persons should be subjected to and liable to that sort of attack when they cannot answer back. For that reason alone all those persons who are interested in the innocence of persons in the dock should be disposed to remove that anachronism.” (See Hansard New Clause V HC Deb 21 October 1982 vol 29 cc 584-601, ... ABOLITION OF RIGHT OF ACCUSED TO MAKE UNSWORN STATEMENT)
The 1982 Criminal Justice Act followed, and s. 72 of the Criminal Justice Act 1982 abolished the unsworn statement.
 The late Dana S. Seetahal, a former Senior Counsel, Law Lecturer at Hugh Wooding Law School, Council of Legal Education and Senator in Trinidad and Tobago, wrote:-
 “In many jurisdictions, the accused person … has … the right to make an unsworn statement … from the dock on which he cannot be cross-examined… The trend in the region is now to abolish this right, as has been done in England … There is a growing recognition by courts and the legislature that some accused persons may take advantage of the fact that they would not be cross-examined on an unsworn statement to use it to cast imputations on the police and other prosecution witnesses or speaking of their own good character. The most that the prosecution can hope for in such cases is to call specific rebuttal evidence to disprove a defendant’s assertion in the dock of good character …” (Seetahal, 2014, pp. 231-32).
States and Dependent Territories including Anguilla, The Bahamas, the British Virgin Islands, the Cayman Islands, St Christopher (St Kitts) and Nevis, St Lucia, St Vincent & The Grenadines, Trinidad & Tobago and the Turks and Caicos Islands, have abolished the right of a defendant in a criminal trial to make an unsworn statement from the dock.
Some of the leading lawyers in the Caribbean have called for reform in the law in those states where the right for an accused to make an unsworn statement from the dock is still retained. The former DPP of Dominica expressed his opinion in 2013:-
In 2013, Mr Gene Pestaina, the then Director of Public Prosecutions in Dominica, was of the view that the laws should have been “changed drastically”. He said that when the three options were given to an accused person to remain in the prisoner’s dock and say nothing, or to make an unsworn statement, or to go and give evidence from the witness stand under oath, and they chose to make an unsworn statement; “a smart Alick accused” could always give a story for the first time, and it did not matter what the prosecutor and judge said to the jury about taking what they had heard “with a grain of salt”, the jury took what the accused person said as “the gospel truth”. (See )

It is hoped that states, including Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, and others, which still retain the old anachronistic common law right of the accused to make an unsworn statement from the dock, or, according to Lord Diplock “the right to lie to the court with impunity”, would heed the lessons to be learned from the case of Andrew Hipolite George. Andrew had a right to a fair trial, but his co-defendant deprived him of that right, when he exercised his right to make an unsworn statement incriminating Andrew. No defendant in the Commonwealth Caribbean or elsewhere should ever have to be placed in such an invidious position.
 It is recommended that any states which still retain the right of a defendant to make an unsworn dock statement, should take immediate steps to have that right abolished in the interests of fairness and justice.
 I am very grateful to The Honourable Mr Justice Dennis Morrison, President of the Court of Appeal of Jamaica, for having provided me with primary source materials on the laws of Jamaica, Belize and the Eastern Caribbean.
R v Andrew Hipolite George (1979) 68 Cr App R 210; [1979] Crim LR 172 (CA England and Wales);
R v Dwayne Irish (2016) Eastern Caribbean Supreme Court, High Court of Montserrat, (Mr Justice Iain Morley QC), 8 November.
R v Walker [1974] 1 WLR 1090 (Privy Council).
Criminal Justice Act 1982 (England and Wales)
Evidence Act, Cap. 155 (Antigua and Barbuda)
Evidence Act, Cap. 121 (Barbados)
Evidence Act, Cap. 95 (Belize)
Evidence Act, Cap. 92 (Grenada)
Evidence Act, Cap. 5.03 (Guyana)
Evidence Act (Jamaica)
Evidence Act, Cap. 02.08 (Montserrat).
Parliamentary Debates (UK)
Hansard, Criminal Justice Bill, HL Deb. vol. 431 cc 4-72 (7 June 1982)
Hansard, Criminal Justice Bill, HC Deb. vol. 432 cc 464-539 (2 July 1982)
Hansard, Criminal Procedure (Philips Report) HC Deb. vol 13 cc 527-98 (20 November 1981)
Seetahal, D. (2014) Commonwealth Caribbean Criminal Practice and Procedure. 4th Ed. London: Cavendish Publishing.
Young, M. and Hill, P. (1983) Rough Justice. London: BBC Ariel Books.
Journal Article
Cohen, M. (1981) The Unsworn Statement From The Dock. Criminal Law Review pp. 224 - 234
Newspaper Articles
The Times (1977) Burglars left woman of 85 to die, prosecution says. 16 November, p. 6.
The Times (1978) Law Report Court of Appeal Statement from dock: no evidence in rebuttal by co-accused, Regina v George. 31 October, p. 9.
West Indian World (1977) Wembley Murder - Youths Acquitted. Nov/Dec.
Dominica’s laws should change – DPP [Date accessed 11 March 2018].
 R v Dwayne Irish (law report) [Date accessed 15 March 2018]

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