3. Principles and procedures to admit and exclude evidence Flashcards
What are the 2 basic requirements which need to be satisfied for a piece of evidence to be taken into account?
- Must be relevant to facts in issue in the case
- Must be admissible
What is the evidential burden on the prosecution?
Must show that the defendant has a case to answer
What is the evidential burden on the defence?
Only required to give evidence of some defences - just need to put the evidence forward and then prosecution to prove beyond reasonable doubt that defence raised is not true
What is the effect of s 78 PACE?
Provides court with discretion to exclude evidence if it will have an adverse effect on proceedings
Is evidence automatically inadmissible if it breaches, for example, Code D?
No, it is for the defence to argue that the judge should exercise their discretion as to its admissibility
What is the threshold for a breach of PACE in order for the court to grant an application to exclude evidence?
Significant and substantial - i.e. strong causal link between breach and result
If evidence was gained by “entrapment”, what defence is available?
No defence of entrapment is available, so common law power to stop case on basis it would represent an abuse of process to allow such a prosecution to continue
What are the Turnbull guidelines?
Special guidelines that apply when a witness who gives evidence for the CPS visually identifies that defendant as the person who committed the crime and the defendant disputes that identification
If there is a disputed visual sighting, how should s 78 PACE and the Turnbull guidelines be used?
- Consider whether there is any basis upon which an application can be made to challenge the admissibility of the evidence under s 78
- If admissible, focus on undermining the credibility of the evidence (not procedure) using the Turnbull guidelines
In what identification situations would the Turnbull guidelines apply?
- Witness picks out defendant informally
- Witness picks them out as part of a formal identification procedure at police station
- Witness claims to recognise defendant as someone previously known to them
What factors would the judge consider in assessing the quality of the identification procedure?
o Length of the observation
o Distance of witness
o Lighting – was it in daylight or at night etc
o Conditions – weather; sight-line or obstructions to sight
o How much of the suspect’s face did the witness actually see
o Whether the person identified someone who was already known to the witness (recognition case) or someone they had never seen before
o How closely the original description given by the witness initially matched the defendant
What steps will the judge take if they consider the identification to be good?
They will still warn the jury of the dangers of relying on identification evidence and special caution needed (Turnbull warning)
What steps will the judge take if they consider the identification to be poor but supported by other evidence?
They will warn the jury of the dangers of relying on identification evidence and special caution needed (Turnbull warning) as well as draw attention to weakness of the identification
What steps will the judge take if they consider the identification to be poor and it is not supported by other evidence?
They should stop trial and direct jury to acquit defendant - normally follows a submission of no case to answer being made
How are the Turnbull guidelines applied in the magistrates’ court?
Similar as in the Crown Court, but the defendant’s solicitor will address the Turnbull guidelines in address to the magistrate in closing evidence
What inferences can be drawn from under s 34 CJPOA 1994?
Defendant raises defence at trial that they didn’t mention at interview
What inferences can be drawn from under s 35 CJPOA 1994?
Defendant does not give evidence at trial
What can inferences be drawn from under s 36 CJPOA 1994?
Defendant fails to account for a mark, substance, property on defendant’s person (requires special caution at interview)
What can inferences be drawn from under s 37 CJPOA 1994?
Defendant failed to account for their presence at a certain place any time (requires special caution at interview)
What is the effect of s 38 CJPOA 1994?
Jury can’t convict solely on adverse inferences
If the adverse inference is being drawn under s 34 for silence in the interview before being charged, what are the pre-conditions as per R v Argent?
- Interview had to be under caution
- Defendant failed to mention any fact later relied on at court
- Questioning in interview had been directed at trying to discover who committed the offence
- Defendant could reasonably have been expected to have mentioned to fact when questioned
If the defendant provides a written statement containing all the facts the defendant intends to rely on in court, can an adverse inference still be drawn from silence in interview under s 34?
No
If a defendant’s solicitor has advised them to remain silent, can adverse inferences still be drawn from their silence in interview under s 34?
The court must consider whether they accept the reasons the solicitor gave for silence as good reasons, and then must direct as to whether adverse inferences can be drawn or not
Does an object need to be on a person at their time of committing the crime in order for adverse inferences to be drawn under s 36?
No, but must be at time of arrest - e.g. laptop found at home at time of arrest
Which types of adverse inferences require “special notice”?
S 36
S 37
What constitutes “special notice” with regards to adverse inferences?
Defendant has been told what the offence under investigation is
Defendant has been told what they’re being asked to account for
Officer has told defendant they believe this fact may be due to the suspect taking part in the commission of the offence in question
Been warned of adverse inferences
Defendant aware that record is being made of the interview
In order to draw adverse inferences due to failure to give evidence on own behalf under s 35, what additional factors must the court take into account?
o Burden of proof remains on prosecution throughout
o Defendant is entitled to remain silent
o Before drawing adverse inference, court must be satisfied that there is a case to answer
o Adverse inference from defendant’s failure to give evidence cannot on its own prove guilt
o No adverse inference can be drawn unless only sensible explanation for silence is that defendant has no explanation, or that explanation would not stand up to cross-examination
What is the limited statutory exception to the drawing of adverse inferences at trial?
None should be drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for them to give evidence
