Copyright © 1995 Simon Cooper.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
The Criminal Justice and Public Order Act 1994 abrogated the need for a trial judge to warn the jury of the dangers of acting on the uncorroborated evidence of an alleged accomplice or victim of a sexual offence. This casenote evaluates R v Makanjuola  145 NLJ 959, the first Court of Appeal case to address these provisions, and considers the future of jury warnings where the evidence has been provided by a witness whose testimony is in some way suspect.
- The Background
- Suspect Witnesses
- The Decision in R v Makanjuola
- The Facts
- The Decision
- The Guidelines
- Mandatory Warnings?
(i) on oath by a child of tender years;
(ii) on behalf of the prosecution by an accomplice of the accused;
(iii) by the complainants of sexual misconduct (Davies v DPP  AC 378).
Statutory intervention has now abrogated the need for this mandatory warning in all the above cases. Section 34(2) of the Criminal Justice Act 1988 abolished the requirement for a warning in respect of sworn evidence given by children of tender years and the most recent reform being effected by s32 of the Criminal Justice and Public Order Act 1994.
Section 32 so far as is relevant provides:
"(1) Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is-(a) an alleged accomplice of the accused, oris hereby abrogated..."
(b) where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed,
Running alongside the judicially established categories which attracted a mandatory warning, was a further class of case usually referred to as the 'suspect witness'.
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"While we in no way wish to detract from the obligation on a judge to advise a jury to proceed with caution when there is material to suggest that a witness's evidence may be tainted by improper motive, and the strength of that advice must vary according to the facts of the case, we cannot accept there is any obligation to give the accomplice warning."
The view taken in Beck, endorsed in Spencer, seems to have been that while the format of the warning in 'suspect witness' cases was discretionary, a warning of some sort was obligatory.
One question which remains is whether or not a Beck type warning survives the enactment of the 1994 Act. There is some room for arguing that the Act, by implication, sweeps away the Beck warning (Mirfield, 1995). Equally, it can be argued that Beck remains unaffected by the 1994 Act (Birch, 1995). Unfortunately, whilst addressing the impact of s32 on the need for warnings in cases involving sexual misconduct and providing some general guidance, the first appeal case concerning the 1994 Act does not directly address the Beck question.
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"(2) It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.
(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel....
(5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.
(6) Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rule
The Court concluded by stating "attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated".
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The principal ground upon which Makanjuola is open to criticism lies in the fact that there is no clear statement as to the types of case which might, or perhaps must, attract a jury warning, the Court being content to state that the need for a warning is, apparently, a matter for the trial judge's discretion. The unwillingness of the Court of Appeal to provide such information, whilst perhaps understandable, is hardly satisfactory. Substantive directions to jurors should be consistent from case to case. They ought not to depend upon the exercise of a discretion, at least where the material facts are identical.
Further, it is at least arguable that a warning to the jury in a case which involves 'suspect evidence' remains mandatory. Support for this argument can be drawn from the way the common law developed before the passing of the 1994 Act. In Spencer, the House of Lords accepted the argument that the evidence of "suspect witnesses" required a warning be given to the jury, although in so doing refused to extend the categories judicially recognised in Davies v DPP. It was clear, however, that some form of quasi-corroboration warning had to be given. It was not a matter for discretion. The 1994 Act only removed, rightly in my view, the obligation to warn merely because the witness fell within one of the recognised common law categories. The Act is silent about suspect evidence and suspect witnesses generally and does nothing to cast doubt upon the dicta in Spencer. It would be curious then, notwithstanding the changes made by the 1994 Act, if the giving of a warning in relation to suspect evidence was now merely discretionary. It would be neither necessary nor desirable to be prescriptive about the format of any such warning. As the Court of Appeal in Makanjuola said:
"Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated."
It must, however, be in the interests of justice to ensure that the jury are made aware of the potential weaknesses of suspect evidence, irrespective of the type of case in which the issue arises. The overriding duty, according to Spencer, is that the trial judge puts the defence case fairly to the jury and this can hardly be achieved unless due reference is made to any weaknesses in the prosecution case. It ought, therefore, to remain incumbent upon a trial judge to at least direct a jury to view suspect evidence with caution and perhaps, where appropriate, inform them of what other evidence, if any, is available to support the suspect evidence.
Mirfield, P (1995) 'Corroboration After the 1994 Act'  Criminal Law Review 448
Birch, D (1995) 'Corroboration: Good-bye To All That'  Criminal Law Review 524