3+4. Evidence

Question 1

What are the 2 Burdens of Proof in Criminal Proceedings?

Answer 1

1. Legal Burden (to prove the matter or fact in issue)
2. Evidental Burden (to make an issue ‘live’)

Question 2

Which party has the burden to prove an Criminal offence has been commited?

Answer 2

It is for the Prosecution to prove the defendant is guilty and to disprove any defence (unless it is diminished responisbility in which the D must prove)

Question 3

What is the only defence in Criminal Practice that the Defendant must prove (Rather than the Prosecution disprove)

Answer 3

Diminished Responsibility - Involantary Manslaughter

Question 4

What is the Standard of Proof in Criminal Practice for the Prosecution?

Answer 4

Beyond Resonable Doubt

Question 5

What is the Standard of Proof in Criminal Practice whent the defence has the burden of Proof ? (Only in diminished responsibility will the D have the burden to prove his defence)

Answer 5

Balance of Probabilites.

Question 6

What is Visual Identification Evidence?

Answer 6

Any Evidence that is used to prove the defendant is the one who commited the offence.

Evidence that purports that a witness has identified a suspect.

1. ID Parades
2. Witness Statements
3. Dock Identification at Trial

Question 7

When can a witness visually identify a suspect for the purposes of Visual Identification Evidence?

Answer 7

Pe Trial Identification

Dock Identification (at trial)

Question 8

What is a Dock Identification and what are the 2 circustances this can take place?

Answer 8

Dock Identification is where a witness identifies FOR THE FIRST TIME an accused sitting in the dock at trial.

However, a witness can only identify the D for the first time at trial if:

1. It was impractical or unnecessary for the witness to carry out an ID Procedure
2. Or there are exceptional Circustances.

Question 9

What happens if a witness idenpently makes a dock identification (Ie calls out ‘Thats him!’ without invitation from the prosecution?

Answer 9

The judge may warn the jury not to give it any weight.

Question 10

What is the Turnball Guidance and when does it apply?

Answer 10

WHEN DOES IT APPLY:

1: The Turnball Guidance applies where the case depends WHOLLY or SUBSTANTIALLY on Visual Identification Evidence and

2. there is a Dispute between the prosecution and defence as to the visual identifcation evidence.

WHAT ARE THE GUIDELINES:

1. The Guidelines Require the Judge to assess the quality of the evidence,
2. and provides actions to be taken by the judge following this.

Question 11

What are the 3 qualities of Visual Identification evidence the judge can find following the Turnbull Guidance?

Answer 11

1. Good Quality
2. Poor Quality, but supported by other evidence (such as stolen property being found in the D house)
3. Poor Quality and Unsported.

Question 12

What happens if the Judge finds visual identification evidence to be Poor Quality and Unsupported following the Turnbull Guidance?

Answer 12

The Judge will invite submissions from the advocates and if appropriate withdraw the case from the jury, directing them to acquit the defendant.

Question 13

What happens if the Judge finds that the evidence is of Good Quality, or of Poor quality but supported by other evidence following the Turnbull Guidance?

Answer 13

A Turnbull Direction must be given to the jury to:

1. Consider the Fact that even convincing witness statements can be mistaken
2. Consider the Circumstances in which each identification was made

Question 14

What will the judge consdier when Assessing the Quality of Visual Identifcation Evidence for the purposes of the Turnbull Guidance?

Answer 14

The Judge Should Consider:

1. The length of time the Witness observed the Defendant
2. Where that observation was impeded (can the D be seen entirely or is it a partial identification due to some obstruction to their line of sight)
3. The conditions of the identification ( Distance, Lighting, Weather)
4. Whether the D was known to the witness previously
5. The Length of time between the witnesses’ original observation and further identification to the police.
6. Whether there are significant discrepancies between a witness’s description and the actual appearance of the D
7. Whether any significant discrepancies have been proved to the Defence.

Question 15

What is an inference from Silence?

Answer 15

Although there is a general right to remain silent, silence or failure to account may lead to inferences being drawn.

A Court may draw inferences that ‘appear proper’ from a defendants silence.

Question 16

What are they key section numbers for the purposes of drawing Infrences from Silence?

Answer 16

S.34-38 Criminal Justice and Public Order Act 1994

S.34 - Silence when Questioned or Charged

s.35 - Failure to testify at trial

s.36&37 - Failure to account for objects or presence at particular place

s.38 - Interpretation

Question 17

What does S.34 (CJPOA 1994) prescribe where there is a fact mentioned at trial which D failed to mention earlier?

What are the 6 Argent Factors?

Answer 17

Where the D remains silent upon arrest and questioning, but later put forward a fact or account at trial that could have been answered at initial questioning inferences can be drawn.

Adverse Inferences can only be drawn if 6 conditions are met (Argent Factors):

1. Criminal Proceedings have started 

2. The failure (silence) occurred before or on charge

3. The failure occurred when the defendant was questioned by a constable

4. The constables question was for the purpose of discovering how and who committed the offence 

5. The D relied on a fact as part of their defence that was not mentioned to a constable when questioned 

6. It was reasonable for the defendant to have mentioned the fact to a constable when questioned before or on charge.

Question 18

What is the affect of failing to testify at trial or refusing some questions following S.35 CJPOA 1994

Answer 18

Inferences can be drawn if:

1. The defendant refuses to give any evidence at trial,
2. or gives some but refuses specific questions ‘without good cause’.Without good cause is where the d silence can only SENSIBLY be attributed to him having no answer, or no answer to the cross-examination.

However inferences can only be drawn if:

1. The d was given the opportunity to testify, and
2. The D understood the court could draw inferences from their failure to testify or their refusal, without good reason, to answer a question put to them.

HEALTH - If the D physical or mental health makes it undesirable for them to give evidence inferences may not be drawn!

Question 19

What does ss.36 & 37 CJPOA 1994 prescribe about infrences being drawn where there is a failure to account for objects found on D or D presence at a particular palce?

Answer 19

S.36 - Objects

If an object, substance, or mark is found on the D and their fail to give an explanation, inference’s may be drawn,

S.37 - Presence

If the D is found at the place of the crime or about the time the offence was committed and fails to account for that, inference’s may be drawn from that failure.

SPECIAL WARNING

Both s.36 and 37 only apply if the object found, or location d was at relates to the offence and a SPECIAL WARNING has been issued.

The D must be told in an ordinary language:

1. What offence is being investigates
2. What fact they are being asked to account for
3. That this fact may be due to them taking part in the offence
4. That a court may draw inferences for failing to account for this fact
5. That a record is being made of the interview and it may be given in evidence.

Question 20

What does s.38 CJPOA 1994 interpretation rules prescribe?

Answer 20

Prescribes:

1. D cannot be convicted based on Inferences alone (other evidence is requires)
2. Inferences cannot be drawn under 34, 36, or 37, if the D was at the police station when questioned and had not been given the opportunity to consult a solicitor prior to being questioned. (Does not apply if they was given the Opportunity and decline)

Question 21

What does s.34 CJPO 1994 relate to ?

Answer 21

D making a statement at trial that they did not mention at an earlier oportunity as they remained silent.

Question 22

What does s.35 CJPOA 1994 relate to?

Answer 22

Failure to give evidence at trial, or failure to answer specific questions at trial without good reson.

Question 23

What does s.36 of the CJPOA 1994 relate to?

Answer 23

Failure to give an account of why an object has been found on the person

Question 24

What does s.37 of the CJPOA 1994 relate to?

Answer 24

Failure to give an account of why the D was at a specific location

Question 25

What does s.368of the CJPOA 1994 relate to?

Answer 25

Gives interpretation rules in relation to during Infrences.

Question 26

What must a judge do if there is visual identification evidence that is challenged by the defendant?

Answer 26

The judge must give a turnbull order giving warning to the jury on the dangerous of relying on visual identification and how even the most compelling witness statements can be confused (re check in notes this is what a turbull order is, but the order must defo be given)

Question 27

What is Hearsay Evidence?

Answer 27

• Hearsay evidence is evidence presented to the Court by the parties advocate, not by the person who originally made the evidence

    ○ For example, an advocate may read out a witness statement instead of the person who made the statement attending and giving evidence. 

Hearsay evidence is generally inadmissible.

Question 28

What are the 3 criterias for evidence to be capable of being hearsay evidence?

Answer 28

1. In a statement made by a person
2. Not made in oral evidence
3. Prove a matter stated

Question 29

What is a statement made by a person?

Answer 29

The first ground of evidence to be able to be hearsay evidence:

a representation of any fact or opinion made by a person by whatever means (orally, writing, conduct) , and includes a representation made in a sketch, photofit or other pictorial form

Question 30

What is ‘not made in oral evidence?’

Answer 30

The second of 3 grounds need meeting for an evidence to be hearsay evidence.

The evidence has been made outside of a court

Question 31

What does ‘Prove a matter stated’ mean?

Answer 31

It is the third requirment for evidnce to be hearsay evidence.

The person who makes the statement must make it with the intention to either:

1. Cause Someone to believe thst what is being represented in the statement is true

or

2. Cause someone or something to operate on the basis that what is being represented in the statement is true.

Question 32

What are the 2 parts to Hearsay Evidence?

Answer 32

1. Is the evidence capable of being Hearsay Evidence?
2. Is the hearsay evidence admitable?

Question 33

What are the 4 STRICT grounds for admitting Hearsay evidence?

Answer 33

1. A statutory Provision Applies
2. A common law principle preserved by statute applies
3. All parties to the proceedings agree to its admisability
4. The Court is satified it is in the interests of justice to admit the evidence

If not one of these grounds, the evidence is inadmisable

Question 34

What are the 2 statutory grounds that allow for Hearsay Evidence to be admitted?

Answer 34

1. Unavaliable Witness
2. Business Documents

Question 35

What are the 3 grounds that must be met for hearsay evidence to be admitable under a statutory provision of the witness being unavalaible?

Answer 35

1. The oral evidence would have been admissible if they had attended Court in Person
2. The Court Knows the identity of the person who made the statemenet
3. The reason for the unavaliability is one of the 5 Presecibed reasons

Question 36

What are the 5 prescribed reasons for a witness being unavaliable and the evidence being admitable as hearsay under the statutory provision ?

Answer 36

1. The Witness is Dead
2. Witness is unfit due to a bodily or mental condition
3. The Wintess is outside the UK and it is not reasonably practicable to secure their attendance
4. Witness cannot be found despite reasonably practicable steps being taking
5. Witness is in fear of giving evidence

Question 37

When will the court consider evidence from a dead witness when admiting hearsay evidence under the statutory provision of unavalible witness?

Answer 37

If it is in the interest of justice to admit the evidence

Question 38

When will the condition be satisfied for the Court to admit hearsay evidence under the statutory provision that the witness is unavaliable because they are unfit due to a bodily or mental condition

Answer 38

If the witness COULD be brought to court, but their condition would render their attendance pointless

Question 39

What will the Court consider when deciding to admit hearsay evidence under the staturoy provision of unavaliable witness because they are outside the UK and it is not reasonably practicable to secure their attendance?

Answer 39

The Court will consider:

1. Any steps taken to secure the attendance of the wintess, or

2.The reason for the witness being abroad, and

3. The level of contact before the trial started.

The prosecution will need to provide COMPLELLING REASONS to satisfy the condition

Question 40

When will the court admit hearsay evidence under the statutory ground of unabaliable witness because the witness cannot be found despite taking reasonably practicable steps

Answer 40

All reasonable practicable steps must have been taken to locate a witness who is lost, and this not only includes looking for the witness, but keeping track of the witness to satisfy this condition

Regular contact should be maintained between the witness and the party calling the witness

Question 41

When will the Court admit hearsay evidence under the statutory provision of unavaliable witness because the witness is in fear of giving evidence.

Answer 41

Any feat must relate to the relevant time, and may come from:

1. Being in fear as a result of witness intimidation
2. Fear of injury or financial loss

This condition is not easily satisfied. Every effort must have been made to get the witness to court before this condition is satified

Question 42

What are the 5 conditions that must be met for hearsay evidence to be admissible under the statutory provision of it being a business document?

Answer 42

Statements contained in business documents may be admissible if the statement:

1. Would have been admissible as evidence of a matter stated in oral evidence
2. Was created or received by a person who at the time was acting in their occupation or as a holder of unpaid or paid office, and
3. Was supplied by someone who had personal knowledge of the matters stated.
4. The original witness is unavailable
5. It is unreasonable to expect the witness to remember the matters referred to.

If the evidence is multiple hearsay (passed through more than 1 person), than each person passing the statement must have done so when acting in their employment or as a holder of a paid or unpaid office.

Question 43

What is Res Gestae?

Answer 43

Res Gestae is a common law principle allowing for hearsay evidence to be addmitable if the statement is made as a result of a close and imitate connection with the event in issue, and it is made contemproaneously with that event.

Question 44

Give an Example of a situtation of Res Gestae could be used?

Answer 44

James assaulted Mark by hitting him in the head, he then fled the property.

As soon as James left, Mark called the police and said ‘it was James, James attacked me, I need help.’

Mark then passed out, and when he woke up in the hospital, he could not remember the name of his attacker.

This could be admitted as hearsay evidence under the common law principle of Res Gestate as it was made immediately after.

Question 45

What is the ‘Interests of Justice’ Ground for allowing Hearsay evidence to be admitted ?

Answer 45

This is a ‘catch all provision’ in the case the evidence is not admittable under any other provision.

This provision should not be used if there is another provision, and even if the evidence is admissible, the Court may use its discretionary exclusionary power to not admit the evidence.

Question 47

Is a confession made outside of Court hearsay evidence?

Answer 47

No, s.76 of Pace 1984 (Police and Criminal Evidence Act) provides a seperate framework of confession evidence.