Chapter 7: Procedures to Admit and Exclude Evidence

Question 1

Who has the burden of proof in criminal cases?

Answer 1

The burden of proof lies on the prosecution to prove that the defendant committed the offence charged.

Question 2

What is the standard of proof in criminal cases?

Answer 2

The prosecution must prove their case beyond reasonable doubt.

This means they must convince the bench/judge/jury so they are reasonably sure the defendant committed the offence.

Question 3

When must the defendant be acquitted?

Answer 3

If the defence manage to cast reasonable doubt on any element of the offence.

Question 4

Why is visual identification evidence notoriously unreliable?

Answer 4

Because honest witnesses can nevertheless be mistaken.

Question 5

When must the Turnbull guidelines be followed?

Answer 5

If a case wholly or substantially relies on identification evidence, and the defendant disputes the identification evidence.

Question 6

What do the Turnbull guidelines do?

Answer 6

Set out factors to determine the strength of the identification evidence.

Question 7

What are the Turnbull Guidelines?

Answer 7

A - amount of time the witness observed the suspect

D - distance between the witness + the suspect

V - visibility at the time of the observation

O - obstruction between witness and suspect

K - known or unknown to the witness

A - any reason to remember the suspect

T - time lapse between the incident and the identification procedure

E - errors in the witness’s first description of the defendant’s appearance

Question 8

What should the judge do if they conclude the identification is weak + there is no supporting evidence?

Answer 8

They should withdraw the case from the jury + direct acquittal.

Question 9

What will the judge do if they conclude the identification evidence is strong enough that a conviction would be supported, or if there is corroborating evidence to support a weak identification?

Answer 9

The judge will leave the case to the jury to decide.

Question 10

What might the defence do if there is identification evidence used at trial?

Answer 10

If the case proceeds to trial, the defence may seek to undermine the quality of the identification evidence in cross-examination of the identification witness by going through the factors set out in ADVOKATE.

Question 11

When is a Turnbull warning given?

Answer 11

In the summing up at the end of the trial, the judge must give the jury a Turnbull warning on the identification evidence.

Question 12

What should the judge include as part of the Turnbull Warning?

Answer 12

1. Warn of the special need for caution before convicting the defendant in reliance on identification evidence, explaining that a mistaken witness can be convincing and (when there is more than 1 witness) that several witnesses can be mistaken.
2. Ask the jury to consider the circumstances in which the witness identified the defendant, and
3. Refer to particular weaknesses with the identification evidence, considering the factors set out in ADVOKATE.

Question 13

What impact can adverse inferences have on conviction?

Answer 13

Adverse inferences can weaken the defence, but a defendant cannot be convicted on the basis of an adverse inference alone.

Question 14

When can an adverse inference be drawn re fact upon charge?

Answer 14

When the defendant fails to mention a fact when questioned or charged which the defendant reasonably could have been expected to mention.

Triggered by putting forward an explanation at trial.

Legal advice to remain silent will not necessarily preclude inference.

Question 15

When can an adverse inference be drawn re giving evidence at trial?

Answer 15

If the defendant fails to give evidence at trial, an adverse inference can be drawn.

Unless, the defendant’s physical/mental condition makes it undesirable for them to give evidence.

Question 16

When can an adverse inference be drawn re object, substance or mark?

Answer 16

If the defendant fails to account for an object, substance, or mark found on the defendant’s person, clothing, or footwear in their possession at the time of the arrest

Question 17

When can an adverse inference be drawn from being present at the scene?

Answer 17

If the defendant fails to account for their presence at the scene of a suspected offence.

Question 18

When does hearsay arise?

Answer 18

When evidence is produced in writing or when someone testifies in court to something someone else told them out of court.

Question 19

What is the definition of hearsay?

Answer 19

A statement, not made in oral evidence, that is relied on as evidence of a matter in it.

Question 20

What are examples of hearsay?

Answer 20

i. witness repeats in court a statement made tot hem out of court, as evidence of the truth of the content of that statement,

ii. witness statements read out in court (rather than the witness attending in person), and

iii. business documents produced in court, e.g., company account records.

Question 21

When is hearsay admissible?

Answer 21

Only if it falls under one of the 4 categories of admissible hearsay evidence:

1. admissible under statute
2. admissible by rule of law
3. admissible by agreement of all parties, or
4. admissible in the interest of justice.

Question 22

When is hearsay admissible under statute?

Answer 22

i. a witness is unavailable

ii. business documents (certain conditions)

iii. statements prepared for use on criminal proceedings + the relevant person cannot be expected to recollect the matter

iv. previous consistent or inconsistent statements of a witness

v. expert evidence is adduced

vi. there is a confession

Question 23

When will a witness be considered unavailable?

Answer 23

If they are:
- dead,
- unfit owing to bodily or mental condition,
- outside of the UK and it isn’t reasonably practicable to secure their attendance, or
- unable to be found despite reasonably practicable steps having been taken to find them.

Also includes the situation in which the witness doesn’t give evidence through fear + the court gives leave for a written/recorded statement to be given in evidence.

Question 24

When may a business document be adduced as admissible hearsay under statute?

Answer 24

If:
1. the document was created or received in the course of trade, business, profession, or other occupation,

2. the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter, and
3. if the information was received by other persons, it was done in the course of trade, business, profession, or other occupation.

Question 25

When will hearsay be admissible by rule of law?

Answer 25

1. Confessions or mixed statements by the defendant
2. Statements made contemporaneously to the offence, and
3. Statements preserved by res gestae

Question 26

What are statements preserved by res gestae?

Answer 26

1. Statements made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement, and
3. Statements relating to a physical or mental state.

Question 27

What must the court consider when deciding whether hearsay evidence might be admissible in the interest of justice?

Answer 27

1. The probative value of the statement to a matter in issue,
2. What other evidence could be given,
3. How important the evidence is in relation to the case as a whole,
4. The circumstances in which the statement was made,
5. How reliable the maker of the statement appears,
6. How reliable the evidence of the making of the statement appears,
7. Whether oral evidence of the matter stated can be given,
8. The amount of difficulty in challenging the statement, and
9. The extent of the likely prejudice caused.

Question 28

What is multiple hearsay?

Answer 28

Occurs when a statement has been relayed through more than one person before it gets to court.

Question 29

When is multiple hearsay admissible?

Answer 29

Only if:
1. it is a business document,
2. it is an inconsistent statement,
3. it is a consistent statement,
4. all parties agree, or
5. the value of the evidence is so high that it is in the interests of justice

Question 30

What is a ‘confession’?

Answer 30

The term includes any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority + whether made in words or otherwise.

Mixed statements, which are partly exculpatory and partly incriminating, are also confessions.

Question 31

When are confessions admissible?

Answer 31

If they are relevant to a matter in issue.

Something is relevant if it goes to proving or disproving some fact in issue in the prosecution.

Question 32

How can the defence challenge the admissibility of a confession?

Answer 32

Either on the basis of oppression or unreliability (s76 PACE 1984)

Question 33

How can a challenge be made to the admissibility of a confession on the basis of oppression or unreliability?

Answer 33

Challenges can be made if a confession was obtained by oppression, or
By things said or done likely to render the confession unreliable.

The defence must show there is a causal link between the oppression or the things said or done + the confession made.

If the confession was made independently of the oppression or the things said or done, then it will not be excluded.

Question 34

What happens once the admissibility of a confession has been challenged?

Answer 34

The burden is on the prosecution to show beyond reasonable doubt that neither oppression nor things said or done likely to render the confession unreliable apply.

If the prosecution fails to discharge this burden, the confession must be excluded.

Question 35

What are examples of things said or done likely to render a confession unreliable?

Answer 35

• inducements,
• misrepresenting strength of the case, or
• questioning a suspect when unfit

Question 36

What is the process for deciding admissibility of confessions in the Crown Court?

Answer 36

Admissibility of a confession is decided by the judge in the absence of the jury - it is a matter of law rather than fact.

This kind of hearing is known as a voir dire.

The jury will not know the nature of the matter being discussed + will not be informed of the outcome

Question 37

What is the process for deciding the admissibility of confessions in the Magistrates’ Court?

Answer 37

The bench decide matters of both fact and law.

If the bench rules a confession inadmissible, they must then put the confession from their mind + decide the case without it.

Question 38

What power does the court have to exclude evidence based on unfairness?

Answer 38

A court has discretion to exclude evidence offered by the prosecution if it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding (s78 PACE 1984)

Question 39

When must the court exclude evidence?

Answer 39

If the court finds that there has been:
- mistake,
- untruth,
- oppression, or
- unreliability due to things said or done.

Question 40

When will the court often exclude evidence for unfairness?

Answer 40

If police officers have breached their duties under PACE in obtaining evidence.

However, a court will not exercise its discretion to exclude in such circumstances unless the breaches are significant and substantial and have rendered the evidence unreliable.

Question 41

What breaches of PACE might lead the court to exclude evidence for unfairness?

Answer 41

i. illegal searches
ii. identification evidence
iii. confessions
iv. covert surveillance, and
v. undercover operations

Question 42

What is bad character evidence?

Answer 42

Evidence of, or for a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence for which the defendant is charged.

Question 43

What is good character evidence?

Answer 43

Evidence of a lack of, or a lack of a disposition towards, misconduct, the commission of offences, or other reprehensible behaviour.

Question 44

What are the 7 gateways to admitting bad character evidence?

Answer 44

1. All parties agree
2. Evidence adduced by the defendant, or is given by the defendant in response to cross-examination
3. Important explanatory evidence
4. Relevant to an important matter in issue
5. Matter in issue between co-defendants
6. Correct false impression given by defendant
7. Defendant attacked another’s character

Question 45

When is bad character evidence important explanatory evidence?

Answer 45

If the evidence is needed to properly understand other evidence in the case + its value to understanding the case as a whole is substantial

Question 46

When will bad character evidence be relevant to an important matter in issue?

Answer 46

If the evidence is relevant to an important matter in issue, including the propensity to commit offences like the current charge + the propensity to be untruthful.

This can be used to adduce similar previous convictions and cautions or even dishonesty convictions.

Question 47

When can bad character evidence be used to correct a false impression given by the defendant?

Answer 47

This includes evidence given by the defendant in court, or before court proceedings under caution + evidence given by defence witnesses or elicited by defence questioning.

Question 48

When is bad character evidence admissible if it is important explanatory evidence?

Answer 48

If:
1. without it, the jury would find it difficult or impossible to properly understand other evidence in the case, and

2. its value for understanding the case as a whole is substantial.

Question 49

When may bad character evidence be admissible if relevant to an important matter in issue between the prosecution + the defence?

Answer 49

This has proved especially useful to prosecutors as it permits admission of bad character evidence on the basis of propensity to commit similar types of offences or even a propensity to be untruthful.

Question 50

What is needed to be able to show propensity?

Answer 50

There is no minimum number of events needed to show propensity, although the more events there are, the more likely a propensity is to be made out.

Unless the offence has unusual or distinctive features in common with the previous conviction, propensity is unlikely to be made out on the basis of a single conviction.

Question 51

How can bad character evidence be used to show a propensity to be untruthful?

Answer 51

Has been restricted to relate to offences only if untruthfulness forms part of the offence.

It is unlikely that it can be used to simply adduce evidence of dishonesty offences, such as theft and blackmail, unless it relates directly to the type of offence charged in the instant case.

Question 52

What is the procedure for admitting the defendant’s bad character evidence?

Answer 52

If the prosecution wishes to adduce bad character evidence, they must provide notice in a set form + serve within:
- 20 business days of entry of a not guilty plea in the MC, or
- 10 business days of entry of a not guilty plea in the CC.

If the defendant wishes to oppose, the notice to oppose must also be served in a set form within 10 business days.

The application may be decided at a pre-trial hearing or on the day of trial in absence of the jury.

Question 52

When might the ‘substantial probative value to important matter in issue between co-defendants’ apply?

Answer 52

Where co-defendants are running a cut-throat defence, meaning they are blaming each other for the commission of the offence.

A defendant may seek to show that the co-defendant has a history of committing similar offences to the one charged and is, therefore, more likely to be the perpetrator.

The evidence must also relate to an important matter in issue to be admissible.

Question 53

If bad character evidence is sought to be adduced under the gateways of ‘an important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s character’, when must the court not admit it?

Answer 53

If the defence make an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.

Question 54

What must the court have regard for when deciding whether bad character evidence would have an adverse effect on proceedings?

Answer 54

The amount of time that has elapsed between the matters that constitute the bad character evidence +. the offence charged.

Question 55

When may a non-defendant’s bad character be adduced?

Answer 55

3 grounds.

If:
1. All parties to the proceedings agree to the evidence being admissible,

2. It is important explanatory evidence, or
3. It has substantial, probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the contest of the case as a whole.

Question 56

How can good character evidence be evidenced?

Answer 56

By:
- lack of criminal record, or
- other noteworthy, commendable behaviour, such as extensive voluntary work or other public service.

Question 57

When is the defendant entitled to have the judge give a good character direction to the jury?

Answer 57

If the defendant has no previous convictions.

Question 58

What does a good character direction consist of?

Answer 58

2 parts:
1. the propensity direction, and
2. the credibility direction.

Question 59

What is the propensity direction? (GCE)

Answer 59

That a person of good character is less likely to have committed this offence.

Question 60

What is the credibility direction? (GCE)

Answer 60

A person of good character is more likely to be credible when they assert their innocence either before or during trial.

Question 61

When may a defendant be considered of effective good character + may receive a propensity and credibility direction?

Answer 61

If the defendant has previous convictions that are old, minor, and not related to the current charge

Question 62

When will a good character direction probably not be available, even if there are no previous convictions?

Answer 62

If the defendant has no previous convictions but there is other bad character evidence upon which the prosecution relies

Question 63

When does the judge have a discretion to give a good character direction?

Answer 63

If the defendant has no previous convictions but there is bad character evidence which the prosecution doesn’t seek to rely on