3. Procedures to Admit and Exclude Evidence

Question 1

In what context are Turnbull guidelines relevant?

Answer 1

When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant.

Question 2

What are the eight ADVOKATE guidelines given to the jury to consider in evaluating the weight of the identification evidence?

Answer 2

• Amount of time for which the witness observed the suspect
• Distance between W and S
• Visibility at the time
• Obstruction between W and S?
• Known or unknown (S to W)
• Any particular reasons to remember
• Time lapse between incident and ID
• Errors in W’s first description

Question 3

What must the judge do if the ID evidence is of poor quality and unsupported by additional evidence?

Answer 3

Judge has discretion to either:

1) Withdraw the case from the jury at the end of the prosecution’s case; or
2) Give “special direction” to jury to acquit the defendant.

Question 4

When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?

Answer 4

1. Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
2. Ask jury to consider circumstances in which W identified D
3. Specifically refer to objective weaknesses in the evidence, considering ADVOKATE

Question 5

Adverse inferences drawn under s.34 CJPOA

Answer 5

Where defendant remains silent when questioned or charged, but later puts forward an account/fact responding to original question + reasonably ought to have mentioned.

Question 6

What are the two questions the court must answer when determining whether to admit bad character evidence under gateway s.101(1)(e) between co-defendants?

Answer 6

1) Does the evidence has substantial probative value?
2) If so, is it a matter of substantial importance to the case as a whole?
* consider whether other evidence in case already sheds light on this same issue - does it bring something more to case…?

If court is satisfied in relation to both questions - must admit evidence.
* no discretion to refuse.

Question 7

What is a way a defendant might seek to avoid inadvertently opening the prosecution to rely on s.101(1)(f) to admit bad character evidence?

Answer 7

by withdrawing or dissociating themselves from the assertion before trial

Question 8

What conduct may be considered an ‘attack on another,’ and consequently leave a defendant vulnerable to the prosecution adducing bad character evidence under gateway s.101(1)(g)?

Answer 8

• allegation that the prosecution’s witnesses are biased;
• alleging that police deliberately fabricated evidence or flouted Pace rules;
• adducing evidence of a prosecution witness’ bad character w/ out prior permission from the court

Question 9

What are key points to note about the implications of triggering gateway (g) for bad character?

Answer 9

• can be triggered early on, ie. at police station.
• no opportunity to withdraw attack.
• even if permission is granted to adduce witness’ bad character evidence, gateway (g) may still be triggered.

Question 10

Adverse inferences drawn under s.36 CJPOA

Answer 10

Failure to account for mark, object, or substance found on person at time of arrest.

Question 11

Adverse inferences drawn under s.37 CJPOA

Answer 11

Failure to account for presence at crime scene at time of arrest.

Question 12

Adverse inferences drawn under s.35 CJPOA

Answer 12

Failure by defendant to testify at trial

Question 13

What distinguishes adverse inferences drawn raised under s.34 versus those arising via s.36/37 CJPOA

Answer 13

S.37 and s.36 = do not require additional facts to be mentioned by defendant at trial.
- A mere failure to account suffices to draw an adverse inference.

Question 14

Six conditions allowing for an adverse inference to be drawn under s.34 CJPOA

Answer 14

ALL conditions must be met:

• proceedings against an person for an offence have started.
• alleged failure occurred before or on charge:
• D was questioned by a constable.
• Purpose of questioning was to discover how/who committed alleged offence.
• D relies on a fact as part of their defence that was not mentioned during interview.
• reasonable in circumstances for D to have mentioned fact.

Question 15

What key principle must the court consider when determining whether to admit adverse inferences at trial?

Answer 15

s.38 of CJOA, which states that adverse inference cannot be admitted to bolster what is an otherwise weak case.
- judge should direct jury that a defendant cannot be convicted on basis of adverse inference alone.

Question 16

In what two circumstances can an adverse inference not be drawn under s.34/36/37 CJOPA

Answer 16

1) unfit to be interview - ie. ill-health, confusion, or shock. (‘Thames’ factors);

OR

2) D was not at an authorised place of detention at time (ie. police station) of the failure to account + not given opportunity to consult a solicitor prior to questioning/charge.

Question 17

If suspect declines legal advice, can an adverse inference still be drawn?

Answer 17

Yes - where suspect is given opportunity to consult with a solicitor, but declines, then an adverse inference can be drawn if appropriate.

Question 18

In relation to adverse inference, when should a solicitor advise their client to remain silent and why?

Answer 18

Where any of the following ‘Argent’ factors are in existence at the time:

THAMES
1) Tiredness
2) Health: ill-health
3) Age: under 18
4) Mental capacity: not mentally capable to answer questions. 5) Experience
6) Sobriety: deemed fit for interview? Being intoxicated is not an Argent excuse

• these may be considered “good/reasonable cause” for remaining silent.

Question 19

What is hearsay?

Answer 19

• statement (also includes pictures/photos)
• not made in oral evidence; and
• relied on to prove a matter stated (“truthfulness” of something)

Question 20

When is a statement considered as being made to prove a “matter stated”?

Answer 20

• made by a person with the intention of either:

1) causing someone to believe the matter stated;
2) causing someone to act or operate on basis that matter is as stated.

• must be intended to be heard/communicated (ie. ≠ private diary)

Question 21

Where the prosecution/defence intends to admit a statement to assert the ‘matter stated’ is untruthful, is that hearsay?

Answer 21

No!
- hearsay is about relying on a statement to assert truth of a matter.

Question 22

What are the four categories under which hearsay is admissible?

Answer 22

1. Under statutory gateways
2. Common law rules
3. Agreement of all the parties
4. In the interests of justice

Question 23

What are the categories under which hearsay evidence is admissible under statute?

Answer 23

1. Witness is unavailable
2. Business document adduced
3. Previous inconsistent statements.
4. Previous consistent statements.
5. Documents prepared in anticipation of criminal proceedings.
6. Interests of justice
7. Multiple hearsay

Question 24

For hearsay, what is one key point to note about the business document that might be a trick-question?

Answer 24

If information is recorded into a police log following report of multiple hearsay, can only fall under this gateway if parties passing information to each other are engaging in business-type activity.

• If this was the case, then a police incident log could be treated as a business record.
• Otherwise, next best recourse is interest of justice gateway.

Question 25

When is a witness deemed unavailable?

Answer 25

1. Dead
2. Unfit due to physical/mental condition
3. Fear’s testifying due to defendant
4. Outside UK and not reasonably practicable to return
5. Unable to be found despite steps taken

DUFOU

Question 26

What are the three requirements for a business document to be adduced in exception to the rule against hearsay?

Answer 26

1. Created/received in the course of trade
2. Person who supplied the information may reasonably be considered to have personal knowledge of the matter, and
3. If the information was received by other persons, it was in the course of trade.

Question 27

What are the three categories of res gestae statements which are admissible in exception to the general rule against hearsay?

Answer 27

Statements:

1. Made when a person is so emotionally overpowered, the idea of fabrication can be disregarded
2. Accompanying an act which can only be properly evaluated with reference to the statement
3. Relating to physical or mental state

Question 28

In deciding whether to admit hearsay evidence in the interests of justice, what nine things must the court consider?

Answer 28

1. Probative value of the statement in proving a matter;
2. Alternate evidence is available?
3. Importance of the statement to the case;
4. Circumstances in which the statement was made;
5. Reliability of the maker;
6. Reliability of the evidence of actually being made (ie. multiple hearsay);
7. Can oral evidence be given?
8. Difficulty in challenging the statement?
9. Extent of prejudice to D

• also relevant when considering exclusions in s.117/116

DEAR COP - mnemonic

Question 29

What is one key point to note about the ‘interests of justice’ gateway for hearsay evidence in relation to prosecution witnesses?

Answer 29

court will not allow prosecution to rely on ‘safety valve’ provision to simply rescue it form its failure to get its own witnesses to attend trial.

Question 30

What may a defendant seek to adduce where their co-defendant confesses to the crime?

Answer 30

if charged the same proceedings, then defendant can rely on co-defendant’s confession where it supports its own defence to crime.

Question 31

What is multiple hearsay?

Answer 31

Hearsay within hearsay, where statement is relayed through more than one person before getting to court.

only gateways through which it can be adduced are (i) previous consistent/inconsistent statements (s.120/119) and (ii) business documents

Question 32

In additions to all parties agreeing and in the interests of justice, what are the four situations in which multiple hearsay will be admissible?

Answer 32

1. Business document
2. Consistent or inconsistent statement
3. All parties agree
4. Court is satisfied that the value of the evidence in question is so high it is in the interests of justice to admit it.

Question 33

What distinguishes gateway (c) from (d) regarding bad character evidence?

Answer 33

Gateway (c) is appropriate where there is an overlap with evidence that ‘has to do with’ the alleged facts of the offence.

• Without this background, the case would be incomplete.

Question 34

What is a key point to remember about propensity to be untruthful regarding gateway (d)?

Answer 34

not the same as dishonesty, and types of offences that show lack of truthfulness are not the same (ie. more akin to fraud, than theft).

Question 35

What is the definition of confession?

Answer 35

Any statement, wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise

Question 36

What is required for a confession to be admissible?

Answer 36

It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue.
- prima facie admissible.

Question 37

Two ways a confession can be challenged under s.76(2) of PACE Code

Answer 37

1) obtained due to oppression; or
2) through something said or done that may render confession unreliable

• requires a causal link between the alleged conduct and D’s confession - ie. would otherwise have been made.

Mandatory ground if successful in adducing evidence regarding either of these objections.
* once evidence is adduced, burden shifts to prosecution to prove on a balance of probalities why this should be the case.

Question 38

When the admissibility of a confession is challenged, who bears the burden?

Answer 38

Prosecution must prove beyond a reasonable doubt that the confession was not obtained by oppression or unreliably.

Question 39

What is the distinction between the two gateways in s.76(2) of PACE Code to challenge confession evidence?

Answer 39

Oppression - adduced confession via ‘torture, inhuman or degrading treatment, and the use or threat of violence.’
- if so, must be excluded even if court thinks that the confession is true/genuine.

Unreliable - confession was adduced via coercive means (ie. false promises, significant breaches of PACE).
- key question - whether any evidence obtained in these circumstances would be reliable (not just D’s).

Question 40

Is any further evidence obtained in light of a confession ruled inadmissible also automatically excluded?

Answer 40

No!

Question 41

In what situation does the court have discretion to exclude any evidence offered by the prosecution?

Answer 41

If it appears, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding

Question 42

Other than s.76(2), what additional provision may allow for the exclusion of confession evidence?

Answer 42

S.78 of PACE Code - catch-all provision.
- gives judge discretion to exclude otherwise admissible evidence on basis of unfairness.
- adverse effect on proceedings must be significant/substantial.

cf. from s.76, power to exclude under s.78 is discretionary (‘may’)

Question 43

What are the seven grounds for admitting bad character evidence?

Answer 43

1. All parties agree
2. Evidence adduced by D
3. Important explanatory evidence
4. Relevant to important matter in issue (including propensity to commit similar offences)
5. Matter in issue between co-defendants
6. Correct a false impression given by D
7. D attacked another’s character, or questions a witness intending to elicit such

Question 44

What are the two conditions required for bad character evidence to be admitted as important explanatory evidence?

Answer 44

1. Without it, jury would find it difficult or impossible to properly understand other evidence
2. Its value to understanding the case as a whole is substantial

Question 45

What are two ways hearsay may be adduced with respect to a testifying witness?

Answer 45

1) Proof of previously inconsistent statements;
2) Proof of prior consistent statements, rebutting suggestion of pre-fabrication.
3) Statements used to refresh witness’ memory when cross-examined.

Question 46

What are six safeguard when admitting hearsay?

Answer 46

1) Inadmissible due to witness’ incapacity;
2) Challenging W’s credibility by adducing information undermining it (ie. convictions);
* note - likely require court’s permission as non-defendant bad character evidence.
3) Unconvincing hearsay - due to its importance, renders any possible convinction unsafe.
4) Unnecessary - time-wasted
5) Fairness (S.78 PACE) and common law rule (probabtive value outweighed by its prejudicial effects).
6) Jury direction pointing to the limitations of any hearsay evidence where jury has been unable to see or hear witness, or where it has not been subjected to cross-examination.

Question 47

Evidence of what prior offences can be admissible as relevant to important matter in issue?

Answer 47

All offences of the same kind, i.e. that demonstrate a similar pattern/mode of offending (ie. signature)

Question 48

If the prosecution wishes to introduce hearsay evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?

Answer 48

1. Magistrates Court: as soon as praticable and no later than 20 business days.
2. Crown Court: no later than 10 business days.

Defence must object within 10 business days

Question 49

If a defendant wishes to admit hearsay evidence, within how long of entry of a not guilty plea must notice be served?

Answer 49

both Mags and C.C - as soon as practicable

Question 50

Where a co-defendant wishes to introduce hearsay, when must such notice be served?

Answer 50

as soon as practicable, and in any case, no later than 10 business days after initial disclosure from prosecution.

Question 51

In what instance might bad character evidence showing a propensity to be untruthful?

Answer 51

1) If untruthfulness is part of the offence (ie. fraud offences), or
2) Defendant plead not guilty to an offence they were subsequently convicted of.

Question 52

What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?

Answer 52

It must have substantial probative value, not just be relevant

Question 53

If the prosecution wishes to introduce bad character evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?

Answer 53

1. Magistrates Court: 20 business days after guilty plea
2. Crown Court: 10 business days

Defence must object within 10 business days

Question 54

To which two grounds does a special procedure apply?

Answer 54

1. Important matter in issue between P and D
2. D attacked another’s character

Question 55

For adverse inference, what is a special warning, and when is it relevant?

Answer 55

relevant for adverse inferences drawn under s.36 and s.37

Suspect must be told in ‘ordinary’ language about:
- what offence is being investigated;
- fact they are made to account for;
- fact may be due to them partaking in offence;
- court may draw adverse inference if they fail to account for this fact; AND
- record is being made of interview that can be admitted as evidence against them at trial.

Question 56

What is the special procedure for admission when the ground for admitting bad character evidence is either important matter in issue between prosecution and defence (s.101(d))
or defendant attacked another’s character (s.101(g))?

Answer 56

If the defendant makes an application to exclude, the court must not admit it if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

Question 57

What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?

Answer 57

The court may refuse to admit evidence for the same reason: if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

Question 58

Therefore, what is the difference between the adverse effect relief available generally, and in the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another’s character?

Answer 58

Generally: When there would be an adverse effect on the fairness of the proceedings, court may refuse to admit the evidence

Two specific grounds: When there would be an adverse effect on the fairness of the proceedings, court must refuse to admit the evidence, if D applies

Question 59

What is the propensity direction and what is the credibility direction?

Answer 59

Propensity direction: Person of good character is less likely to have committed an offence.

Credibility direction: Person of good character is more likely to be credible when they assert their innocence before of during trial.

Question 60

In what additional situation might a defendant receive a good character direction?

Answer 60

If they have previous convictions, but they are old, minor, or not related to the current charge

Question 61

Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?

Answer 61

If there is other bad character evidence upon which the prosecution relies

Question 62

If there is other bad character evidence upon which the prosecution does not seek to rely, can a good character direction be given?

Answer 62

The judge has discretion

Question 63

Common law exceptions for hearsay evidence

Answer 63

• public information
• evidence of reputation - if used only to establish character, and not that a matter is true.
• Res gestate - statement made spontaneously by victim during crime (ie. what are your hands doing there pervert?)
• confessions
• statements in furtherance of joint enterprise (ie. one defendant’s statement can be used against all others)
• expert evidence (as in disputes)
• Statements by agents (ie. D’s solicitor)

Question 64

Where a witness is unavailable to testify orally at trial, will their statement be inadmissible as hearsay?

Answer 64

NO - one of the statutory exceptions.
- where W is known but unfit/unavailable, then statement is prima facie admissible (≠ hearsay)

Question 65

How must the judge direct the jury where the ID evidence is of poor quality, but supported by additional prosecution evidence?

Answer 65

Give Turnbull warning:

1) Reason for warning: may convict someone by mistake.
2) Direct jury to examine circumstances in which identification was made and take into account difficulties in identification.
3) Remind jury of weakness in ID evidence - go through ADVOKATE.

Question 66

What general power does the court have to exclude bad character evidence?

Answer 66

S.101(3) CJA - if court takes the view that admitting bad character evidence would have “such an adverse effect on fairness of proceeding,” it must exclude it.

Relevant where prosecution applies to admit bad character evidence under (i) propensity gateway (101(1)(d)) or (ii) where D attacks another person’s character (g).

• revised form of s.78

Question 67

What bad character gateway is available only to the prosecution?

Answer 67

Bad character to correct a false impression(s.101(1)(f))

Question 68

What evidence of a defendant’s bad character is prima facie admissible without satisfying any of the gateways?

Answer 68

Evidence relates to either:
(1) alleged facts of the offence with which the defendant is charged;
(2) evidence of misconduct connected to investigation/prosecution related to current offence.

Question 69

What are two offences falling under the same category by order of the SoS when considering gateway s.101(1)(d) to admit bad character evidence?

Answer 69

theft offences and sexual offences against children under 16

Question 70

When might a court refuse admissibility of bad character evidence under s.101(1)(d)?

Answer 70

where it is satisfied that given the length of conviction, it would be unjust to.

Question 71

What are the three questions the court will follow when deciding whether to admit bad character evidence under gateways gateways (d) and (g)?

Answer 71

1) Does the history of conviction show a propensity to commit offences of the kind charged?
2) Does the propensity make it more likely that the defendant committed the offence charged?
3) In any event, is it unjust to rely on the conviction of the same description/category?

Question 72

What disclosure duties is the police subjected to at the investigative stage?

Answer 72

1) duty to follow all reasonable reasonable inquires whether or not the point to the defendant. Remain fair and objective.

2) duty to inspect, view, listen, and search for all relevant material.

Question 73

What are the additional requirements
when adducing documents prepared in criminal proceedings under the business document gateway for hearsay?

Answer 73

Beyond general requirements, must also show that either that W is :
(i) unable to testify or
(ii) cannot be reasonably expected to have recollection given length of time since information was supplied.

Question 74

As a first step before drawing any adverse inferences, what must the jury be satisfied with?

Answer 74

that the prosecution has a case to answer.

Question 75

In which cases of hearsay is a notice required?

Answer 75

• Business and other documents (s.117)
• Unavailable witness (s.116)
• Interests of justice (s.114)
• Multiple hearsay (s.121)

Question 76

What are the consequences of failing to give a hearsay notice, or doing so late?

Answer 76

1) Evidence is not admissible without the court’s permission;

2) Where permission is grant, it may draw such inferences as appear proper from the failure to give notice; and take this into account when exercising powers as to costs.

Question 77

What are the three gateways for admitting non-defendant bad character evidence?

Answer 77

1) Important explanatory evidence
2) Substantial probative value to either context of case as a whole or specific matter in issue;
3) Agreement by all parties

Question 78

What type of bad character evidence may be adduced by a defendant under s.101(g), which is not admissible under s.101(d)?

Answer 78

s.101(g) can also be used to illustrate a propensity to be dishonest

cf. s.101(d) - only where it shows a propensity to be untruthful