In the recent case of Fitzgerald v. CPS [2024] EWHC 869 (Admin), the High Court confirmed that, absent very special circumstances, a court is not entitled to reject the evidence of a witness that has not been challenged in cross-examination.
Facts of the case:
This case concerned a dog named Yosser. Over time, Yosser’s behaviour began to deteriorate. In July 2021 he attacked another dog resulting in his owner, the appellant in this case, being convicted by North West London Magistrates’ Court, of being the owner of a dog dangerously out of control. The Magistrates made a Contingent Destruction Order imposing conditions on Yosser for when he was taken out in public, including the mandatory wearing of a muzzle.
A month later the appellant was walking Yosser down the street without a muzzle on. Upon passing a member of the public Yosser jumped up and nipped the victim’s arm. The victim called the police and after an investigation the police executed a search warrant and seized Yosser.
On 3 December 2022 the appellant entered a guilty plea at the first opportunity to being in charge of a dog dangerously out of control. The District Judge also made a Dog Destruction Order on the basis that there was already a Contingent Destruction Order in place and that the appellant was not a fit and proper person to own a dog. In an attempt to save his beloved dog the appellant appealed to the Crown Court.
Crown Court Appeal
The appeal hearing took place on 15 June 2023 before Mr Recorder Michael Caplan KC and two lay magistrates. At this hearing, the Court had before it two distinct pieces of new evidence, namely a statement from the appellant’s brother saying that he was willing to take control of and look after Yosser. The second piece of evidence was an expert’s report on Yosser’s behaviour and likelihood of reoffending. The expert, Ms Helen Howell, concluded that Yosser would not pose a threat to public safety if ownership and care is transferred to the appellant’s brother, and he is walked in public on a lead and muzzled. It is important to note that prior to the hearing, and upon receiving Ms Howell’s report, the CPS confirmed that they took no issue with the report, that it was not disputed and that there was therefore no need for Ms Howell to attend the appeal hearing.
Notwithstanding this, the Crown Court upheld the original decision and imposition of the dog destruction order.
High Court Appeal
On appeal, the High Court overturned the decision to order the destruction of Yosser. In considering the case, Lord Justice Coulson concluded that it was not open to the Court to reach a polar opposite conclusion to the expert’s unchallenged evidence. He noted that if the CPS had wished to challenge the expert’s conclusion that Yosser didn’t pose a threat to public safety they were obliged to require her to attend the hearing for cross-examination. Instead, the CPS took no issue with the report. In those circumstances, Lord Justice Coulson held that the Crown Court was bound by the expert’s conclusion unless there was a reason why that conclusion could be fairly ignored or discounted. No such reason was identified by the Crown Court, therefore leading to an unfair outcome.
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:
- 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;
- The purpose of this rule to it make sure that the trial is fair;
- Ensuring that the trial is fair includes fairness to the party who has adduced the evidence of the impugned witness;
- 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;
- Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence;
- Cross-examination gives the witness the opportunity to explain or clarify their evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty (but the rule is not confined to cases of dishonesty);
- 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.
- 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.
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.
