9.1-9.3, 9.9: Principles and Procedures to admit and exclude evidence

Question 1

When will the defendant’s solicitor make a submission of ‘no case to answer’

Answer 1

After prosecution has presented their case and they fail to present enough evidence to justify a finding of guilt / fail to show the defendant has a case to answer

Question 2

Evidential burden on the defence in criminal proceedings

Answer 2

Defendant is not obliged to raise evidence to show their innocence, unless they are claiming a specific defence (must enter witness box)
- CPS then has legal burden of disproving this beyond a reasonable doubt

Question 3

General Principle: when can disputed visual identification evidence be excluded

Answer 3

s 78 of PACE 1984 provides court with discretion to exclude evidence that CPS wants to rely on it ‘the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’

Question 4

When might visual identification evidence be excluded?

Answer 4

Breaches of PACE 1984 or Codes of Practice (Code D specifically)

Question 5

Code D requirements: Visual identification

Answer 5

1. other images shown to the witness must resemble the suspect in age, general appearance and position in life
2. witnesses attending the parade are segregated both from eachother and the suspect before and after the parade
3. when D was detained at the police station, the police did not hold an ID procedure when they should have pursuant to para 3.12 of Code D

Question 6

If the defendant’s solicitor wants to challenge the admissibility of visual identification evidence what should they argue?

Answer 6

That is should be excluded under s 78 PACE

Question 7

What types of cases are covered by the ‘turnbull guidelines’

Answer 7

Cover cases where a witness who gives evidence for CPS visually identified the defendant as the person who committed the crime and the defendant disputes this (’Turnbull witness’)

Question 8

Three ways a turnbull witness can be said to have ‘picked out’ the defendant

Answer 8

1. Picks out the defendant informally
2. identifies the defendant during a formal ID procedure at the police station or
3. witness claims to recognise D as someone previously known to them

Question 9

What will the court consider when assessing the quality of identification evidence?

Answer 9

The qualify of the original sighting, including:
1. The length of observation
2. Distance
3. Lighting
4. Conditions (ie. weather, crowds, obstructing buildings)
5. How much of the suspect’s face the witness actually saw
6. How closely the original description given by the witness to the police matches the physical appearance of the defendant (eg. any discrepancies?)

Question 10

Outcome: Judge thinks identification is of good quality (by the turnbull witness)

Answer 10

If the judge thinks the quality of the original sighting is good, they will sum up the case to the jury before they retire to consider verdict
- Judge will point out dangers of relying on identification evidence and special need for caution when such evidence is relied on
- Will give ‘turnbull warning’ about how easily witnesses can be mistaken and will tell them to take the above factors into account

Question 11

Turnbull Guidelines: Procedure when identification is poor but supported by other evidence

Answer 11

If the judge considers the quality to be poor but supported by other evidence, they will give a ‘turnbull warning’ and draw their attention to the weaknesses in evidence given, and also tell them to look for other supporting evidence

Question 12

‘Other supporting evidence’ the jury may look to when assessing whether a poor identification has other evidence

Answer 12

1. a confession made by D
2. other evidence placing D at the scene of the offence (fingerprints or DNA)
3. theft: stolen property found in defendant’s possession
4. adverse inferences being drawn by defendant’s silence at the police station

Question 13

Turnbull Guidelines: when an identification is poor and unsupported

Answer 13

In this case, the judge will stop the trial at the end of the prosecution case and direct the jury to acquit the defendant (normally follows after a submission of no case to answer is made by the defendant’s advocate)

Question 14

How do the turnbull guidelines differ in the magistrates court for identification evidence which is poor and unsupported?

Answer 14

If identification evidence is poor and no other supporting evidence, D’s solicitor should make a submission of ‘no case to answer’ at the end of the prosection case

Question 15

Magistrates Court and Turnbull Guidelines: Evidence is good or poor but supported by evidence

Answer 15

D’s solicitor will address turnbull guidelines in their closing speech to the magistrates and point out that identification evidence is notoriously unreliable / point out any weaknesses in the existing evidence

Question 16

When are courts unlikely to exercise their discretion under s 78 PACE to exclude evidence IF there has been a breach of PACE

Answer 16

If evidence is relevant to charges against D and breaches are not ‘significant and substantial’

Question 17

Can the defence representative claim that evidence was obtained by entrapment or abuse of process to rule it inadmissible?

Answer 17

No such thing as the defence of ‘entrapment’, D has to challenge under s 78, or invite court to exercise its common law power to stop the case on the basis that it represents an abuse of process to allow it to continue