Isle of Man: Witness In Fear Of Testifying

Last Updated: 11 March 2014
Article by Peter Taylor

In R v Crellin Crim 2012/32 the High Court was asked to admit as hearsay evidence the statement of a witness who through fear would not give evidence.

As in most, if not all common law jurisdiction, hearsay evidence is not admissible as evidence in criminal trials except in certain circumstances.

One circumstance where hearsay evidence is allowed to be presented as evidence in a criminal trial in the Isle of Man is where the witness, through fear will not give evidence and if it shown beyond reasonable doubt by the prosecution that there is such fear then a statement made by the witness to a Police Officer can be read as evidence (Section 1 Criminal Justice Act 1991 an Act of Tynwald).

The issue of a witness being in fear and whether the admission of hearsay evidence deprives the Defendant of a fair trial has been the subject of numerous decisions in the Courts of England and Wales, but such issues have not arisen or come before the Courts in the Isle of Man.

In such circumstances where there is no body of case law in the Isle of Man the Courts will look to other commonwealth jurisdictions for precedents.

In Re Frankland and Moore [1987] A.C. 576 (PC)The Privy Council (the highest Appellate Court for the Isle of Man) stated that as a matter of practice reference is invariably made to the decisions of Courts of England and Wales and reference can be made to other Common Law jurisdictions particularly those who share the Privy Council as the ultimate Appellant Court for the jurisdiction, in arguments before Manx Courts.

The general principle of legal precedents applying in the Isle of Man is that decisions of English courts, in particular the House of Lords (having the same composition as the Privy Council) and the Court of Appeal, are not binding but are of high persuasive authority, and should generally be followed unless

(i) the decision is contrary to an Isle of Man statute;

(ii) there is decided Manx case law to the contrary or

(iii) there are exceptional local conditions which gives good reason for not following the decision from England and Wales.

In Bitel v Kyrgyz Mobil and others (Judgment November 30 2007), His Honour Deemster Doyle set out to the position in respect of the effect of precedents from other jurisdictions in the Isle of Man as follows.

"The Isle of Man is an active member of the Commonwealth and whilst historically it has tended to follow English law I feel quite free to look for guidance to other Commonwealth countries as there is no binding or persuasive authority to the contrary in England.

"In addition to applying our own local precedents Manx courts will also continue to benefit from the learning and reasoning of judgments of the English courts and "other great common law courts" including the High Court of Australia."

The Criminal Justice Act 1991 was enacted prior to the coming into force of the Human Rights Act 2001 (an Act of Tynwald) and the wording of the Isle of Man statue was based upon Section 23 of the Criminal Justice Act 1988 (an Act of the Westminster Parliament) which has been superseded in England and Wales by Section 116 of the Criminal Justice Act 2003 (an Act of the Westminster Parliament).

The Court in Crellin had, therefore, to first decide if precedents from other Jurisdictions could be cited in reaching its decision on the issue of a witness being in fear.

The Court found that whilst there were differences in the statutes of the Isle of Man and those in England and Wales, the differences were not considered to be of substance or of any significance and that reference to precedents from the Courts in England and Wales on the issue of a witness being in fear could be referred to.

The decision of the Court in the Isle of Man in Crellin followed the decisions of the UK Supreme Court and Court of Appeal and found there has to be a causative link, established beyond reasonable doubt, between the fear and the failure or refusal of the witness to give evidence.

In the Crellin case the witness was not in fear of matters connected with the case he was testifying in but was in fear of returning to the Isle of Man due to other circumstances.

On the issue of the admission of hearsay evidence by way of a witness being in fear and the Defendant's right to a fair trial the Isle of Man case law has now been considered in light of the Human Rights Act.

Simcocks

Simcocks has a dedicated and experienced team of criminal lawyers who have an impressive track record acting for defendants from the police station through to the representation of defendants at trial in both summary and General Gaol Courts. We advise on a wide range of matters including motoring law, white collar fraud involving companies and/or individual directors, criminal defence and exclusion orders made against offenders. Our team acts for both privately funded and legally aided clients as well as a number of well know insurers, corporate entities and we regularly act as duty Advocates in the summary Court and at the Police station.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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