Ch 5 Criminal Evidence

Question 1

What does R v Walsh say?

Answer 1

There have to be significant and substantial breaches of PACE for s.78 to be triggered.

Question 2

What is a witness called upon to do?

Answer 2

A witness is called to give evidence as to facts he has actually perceived.

It is for the court to draw its own conclusions.

Question 3

What are the 2 pre-conditions in deciding that identification is a live issue?

Answer 3

1. D disputes the identification evidence

2. The identification evidence is wholly or substantially the only evidence impacting D.

Question 4

What is the ADVOKATE issues arising from R v Turnbull 1976?

Answer 4

Amount of time under observation - How long did the witness have the accused in view?

Distance - What was the distance between the witness and the accused?

Visibility - What was the visibility like at the time?

Obstruction - Were there any obstructions to the view of the witness?

Known or seen before - Had the witness ever seen the accused before? If so, where and when?

Any reason to remember - Did the witness have any special reason for remembering the accused?

Time lapse - How long has elapsed between the witness seeing the accused and the ID procedure being held?

Error or material discrepancy - Are there any errors or material discrepancies between the first description given by the witness and the actual appearance of the accused?

Question 5

What decision came out of R v Turnbull 1976, and what significance does it bring?

Answer 5

The witness evidence is so weak that it would lead to an unsafe conviction. The judge will withdraw the case from the jury.

By withdrawing the case the judge is effectively brining the case to a close without a verdict.

The judge must order to jury to acquit because without the identification evidence which was all or the main part of the evidence against the defendant, there is no evidence left of any weight for the jury to decide upon.

Question 6

What are the three elements of the special warning under the Turnbull warning?

Answer 6

1. The judge should instruct the jury as to the reason for the need for such a warning; mistaken witness can be convincing ones
2. The judge should direct the jury to examine the circumstances in which the identification by each witness came to be made.
3. The judge should remind the jury of any specific weaknesses in the identification evidence. To achieve this judge will cover the points considered in ADVOKATE.

Question 7

What is the Vye direction?

Answer 7

The judge in his summing up to the jury must give a direction explaining the relevance of the defendant’s good character.

Question 8

What are some examples of ‘good character’?

Answer 8

Has no convictions, cautions or other reprehensible behaviour’ and this should be highlighted to the jury.

Question 9

What does character evidence do?

Answer 9

Knowledge of a defendant’s character might assist in assessing the weight of the defendant’s testimony or the case over all i.e his credibility.

Question 10

Where can you find the legal authority for ‘bad character’

Answer 10

s.98 Criminal Justice Act.

‘evidence of or a disposition towards, misconduct.’

It extended the scope for the admissibility of a defendant’s bad character to include ‘other reprehensible behaviour’, examples of which may not have crystallized into a conviction from a criminal court.

Question 11

Where do you find the definition of ‘misconduct’?

Answer 11

s. 112 CJA 2003 and includes ‘reprehensible behaviour’.

• previous convictions
• previous acquittals
• any conduct whilst in employment which resulted in some form of disciplinary action, e.g. a verbal warning
• evidence from a witness referring to a specific incident that has occurred, not related to the offence charged
• bullying at an establishment

Question 12

What can you draw out from R v Hanson (2005)?

Answer 12

• There is no minimum number of events needed to show propensity but the fewer the convictions the weaker the evidence
• A single previous conviction will probably not show propensity unless it is unusual in its circumstances
• ‘Propensity’ is not limited to categories or types of conviction.

An earlier conviction for common assault in respect of a defendant currently charged with an allegation of threatening behaviour, is potentially evidence of a ‘propensity to commit violence’.

Question 13

Where can you find the authority of admissibility of confession evidence?

Answer 13

A confession is admissible under s.76(1) PACE

Question 14

What is the exclusion of a confession evidence?

Answer 14

Under s.76(2)(a) a confession can be excluded if it was obtained by ‘oppression’.

Question 15

Under s.76(2)(b), what does things ‘said or done’ cover?

Answer 15

Things said or done by the police and would include inducements to confess such as offers of bail.

There need no impropriety on the part of the police.

Breaches of PACE can amount to things ‘said or done’ and can therefore render the confession inadmissible.

Question 16

Where can you find the definition of confessions?

Answer 16

s. 82

statement wholly or partly adverse to the person who made it (the suspect), whether made to a person in authority (police) or not and whether made in words or otherwise.

Question 17

What is the starting point consideration of confession evidence?

Answer 17

A confession is presumed to be reliable.

The starting point is that they are admissible for the reason that the accused would be unlikely to have made it unless it was true.

Question 18

What is the causal link for the act of oppression rendering an inadmissible confession?

Answer 18

The act of oppression to render the confession inadmissible, it must have caused the confession.

‘but for’ the oppression there might not have been a confession.

Question 19

What is the causal link for unreliability under s.76(2)(b)?

Answer 19

It is crucial to establish a causal link between the breach of PACE and the unreliability of the confession.

The mere occurrence of a breach does not automatically mean that the confession has to be excluded.

The confession cannot be excluded under s.76(2)(b) if the breach does not cause the confession to be unreliable.

Question 20

What is the definition for oppression under s.76(8)?

Answer 20

torture, inhuman or degrading treatment, and the use or threat of violence.