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Hostile Witnesses at Common Law

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Hostile Witnesses at Common Law


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Terms: (hostile witness)


Source: Blackstone’s Criminal Practice 2015

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Blackstone’s Criminal Practice 2015/Part F Evidence/Section F6 Examination-in-chief/Unfavourable and Hostile Witnesses/Hostile Witnesses at Common Law


Hostile Witnesses at Common Law




The Criminal Procedure Act 1865, s. 3, has not destroyed or removed the common-law right of the judge, in the exercise of his discretion, to allow cross-examination of a hostile witness by asking leading questions about a previous statement. In Thompson (1976) 64 Cr App R 96 the appellant was convicted of incest with his daughter. She had made a statement to the police implicating her father but, when sworn as a witness at the trial, she refused to give evidence, and leave was given to treat her as hostile. She was asked leading questions, her previous statement was put to her, and she eventually agreed that its contents were true. It was argued, on appeal, that since the girl had initially given no evidence, there was no ‘present testimony’ with which her previous statement could be said to be inconsistent, and therefore s. 3 did not apply. Lord Parker CJ found it unnecessary to decide whether s. 3 applied to the facts, since the common-law cases prior to the 1865 Act recognised that pressure could be brought to bear upon witnesses who refused to co-operate. Thus, in Clarke v Saffery (1824) Ry & M 126, in which there does not appear to have been evidence contradicting the earlier statement, Best CJ said (at p. 126): ‘If a witness, by his conduct in the box, shows himself decidedly adverse, it is always in the discretion of the judge to allow a cross-examination’. In Bastin v Carew (1824) cited Ry & M 127, Lord Abbott CJ said: ‘…in each particular case there must be some discretion in the presiding judge as to the mode in which the examination shall be conducted, in order best to answer the purposes of justice’. On this basis, the appeal was dismissed. It is submitted that if the witness in the case had denied making the previous statement and not accepted the truth of its contents, it would not have been open to proof at common law.


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