oct ewj 24 online - Flipbook - Page 55
party intends to accuse the witness of dishonesty (but
the rule is not confined to cases of dishonesty);
Analysis
This case is an important development as it confirms
that the principles in TUI UK Ltd v Griffiths [2023]
UKSC 48 apply to criminal proceedings. In the case of
TUI the Supreme Court held that a party who challenged the evidence of a witness on a material point
was obliged to cross-examine that witness. The
Supreme Court set out eight applicable principles,
which can be summarised as follows:
7. The rule should not be applied rigidly, and it is not
inflexible. Its application depends upon the circumstances of the case as the criterion is the overall fairness
of the trial.
8. There are also circumstances in which the rule may
not apply. Examples include where any challenge to
the expert is insignificant, where the expert’s opinion
was incredible, where there has been an obvious mistake or where the expert has been asked to clarify matters but has not done so.
1. The general rule in civil (and criminal) cases is that
a party is required to challenge by cross-examination
the evidence of any witness of the opposing party on
a material point which they wish to submit to the court
should not be accepted. That rule extends to both witnesses of fact and expert witnesses;
2. The purpose of this rule to it make sure that the
trial is fair;
3. Ensuring that the trial is fair includes fairness to the
party who has adduced the evidence of the impugned
witness;
4. Maintaining fairness of the trial also includes
fairness to the witness whose evidence is being impugned. In particular, an expert witness may have a
strong professional interest in maintaining his or her
reputation from a challenge of inaccuracy, inadequacy
or dishonesty;
What these principles make clear is that the overarching purpose is, firstly, to ensure trial fairness and, secondly, ensure that this fairness is afforded to all
participants in the trial process. It is not open to the
opposing party, or indeed the Court, to disregard
evidence given by factual or expert witnesses if that
evidence is not challenged via cross-examination.
Whilst many will consider it common sense that any
challenge to a witness’s evidence must be put to that
witness in trial, it is helpful to have confirmation that
the stipulated principles in TUI directly apply to criminal proceedings. The case of Yosser the dog is also a
timely reminder that trial fairness is an overriding objective from which not even the Court can choose to
depart.
5. Maintaining such fairness also includes enabling the
judge to make a proper assessment of all the evidence;
Authors
Georgina Diamanti - Investigative Lawyer
and Maiia Meliushcheva
www.emmlegal.com
6. Cross-examination gives the witness the opportunity to explain or clarify their evidence. That opportunity is particularly important when the opposing
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