Criminal 3: Evidence (s78, turnball, ID, adverse inferences) Flashcards
What must evidence be for jury/magistrates to take evidence into account in deciding what facts are at issue?
- Relevant-to facts in issue in case
- Admissible (law allows such evidence to be used in a criminal trial)
What are the types of evidence?
Direct evidence of Ds guilt
Circumstantial evidence-from which guilt may be inferred
How can evidence be excluded?
S78 PACE 1984: In any proceedings the court MAY refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
When is evidence unlikely to be excluded under s78 PACE?
- Evidence relevant to charge
- AND nothing abt way it was obtained which casts doubt on reliability (even if PACE/Code if Practice breached)
In what circumstances is the court likely to exercise its discretion to exclude prosecution evidence under s 78?
If there is something unreliable about the evidence which the police have obtained, which in turn means that it would be unfair to allow the CPS to rely on such evidence.
According to case law, when is the only time a s78 application will be granted?
breaches of PACE are significant and substantial
Can you challenge evidence via entrapment and abuse of process?
No defence of entrapment but can challenge admissibility of evidence under s78
Not acceptable for police to lure individuals into committing unlawful acts and prosecute them, consider:
□ Nature of investigation-intrusive?
□ Nature of offence-some offences can only be committed and so discovered in covert way
□ Nature of police involvement
□ Defendants criminal record
□ Level/extent of supervision of undercover officers
When can the admissibility of disputed visual identification evidence be challenged?
If police breach identification rules (Code D, Codes of Practice)
What should a defence solicitor do to challenge disputed visual identification evidence?
- Challenge admissibility of evidence & ask court to exercise discretion under s78 PACE
- Undermine quality of evidence in cross-examination and consider Turnbull guidelines
What does the Turnbull guidelines apply to?
Where D disputes visual identification evidence made by witness (NOT if just give description to court)
When is a witness a Turnbull witness?
If they:
a. Pick D out informally
b. Identify D at formal identification procedure
c. Recognise D as someone previously known to them
What is considered when assessing the quality of identification evidence?
Consider original sighting and take into account:
□ Length of observation
□ Distance between witness and D
□ Lighting
□ Conditions-weather/view obstructed?
□ How much of suspects face did they actually see (clear v vague description)
□ Identifying someone known to witness v strangers
□How closely description matches actual physical appearance of D
What are the outcomes that the judge/magistrates may find for regarding visual identification evidence
- Identification is good quality
- Identification is poor quality but supported by other evidence (ie. Confession, fingerprints, DNA, stolen prop in possession, adverse inferences)
- If identification is poor quality and unsupported by other evidence
What happens if the identification evidence is found to be of good quality?
MC-sol address Turnbull guidelines on closing speech, saying v unreliable and should exercise caution
CC-Judge give Turnball warning-dangers of relying on identification evidence and how honest witness to mistake identity, jury to examine circumstances of original sighting
What happens if the identification evidence is found to be of poor quality but is supported?
MC-Ds sol address Turnbull guidelines on closing speech, saying v unreliable and should exercise caution.
CC-Judge give Turnball warning
AND draw specific attention to weaknesses of identification evidence and look for other supporting evidence
What happens if the identification evidence is found to be of poor quality and is unsupported?
□ MC-Ds sol make app of no case, must aquitt
□ CC-Judge stop trial at end of pros case and direct jury to acquit , will normally follow submission of no case by Ds advocate
When will an ID procedure occur?
After initial interview
If suspect known to police
What must police do before an ID procedure takes place?
Police must keep record of witnesses’ first description of suspect and give copy to suspect/their solicitor to use if theres discrepancies
When must an ID procedure be held?
- A witness has identified/purported to have identified a suspect
- OR a witness thinks they can/theres a reasonable chance they can identify the suspect AND the suspect disputes being the person the witness has seen =MUST be held unless not practicable or would serve no useful purpose in proving/disproving if suspect involved in offence
- A witness says they identified the suspect in the street some time after crime committed
- Officer in charge considers is would be useful
When is an ID procedure not necessary?
- Suspect admits to being at scene of crime and gives account which doesn’t contradict what witness saw
- Its not disputed the suspect is already known to the witness
What are the 4 different types of ID procedure?
- Video identification
- Identification parade (line up)
- Group identification
- Confrontation by witness
Video ID: how many videos must be shown to the witness
Suspect + At least 8 other people
Where 2 suspects of similar appearance shown in same images, must be at least 12 other ppl
Video ID: so far as possible, what must the other people represent the D in?
Age
General appearance
Position in life
Video ID: rules v unusual features?
must be covered/replicated on others
Video ID: role of suspects solicitor
Suspect/sol must be given reasonable opp. to see full set before
If suspect has reasonable objections, police take steps if practicable to remove grounds for objection
Must be given reasonable notice of time/place
Video ID how and how many times are videos shown to witness?
1 at time
No limit to number of times
May be frozen
Video ID: before a witness is shown videos, what must they not be able to do?
Communicate with each other about case
Overhear witness whos already seen
See images
® See/be reminded of photos or description of suspect/given any other indication as to sus identity
Be told another witness has identified
Video ID: what age can consent be given/who is needed?
Under 14: Parent/guardian
Over 14: Suspect
Parade: how many people and what must they resemble suspect in?
Suspect +at least 8 others
Represent suspect in:
Age
General appearance
Position in life
ID parade: what must witnesses be told before?
◊ The person may or may not be present
◊ If they cant make positive identification, say
◊ Don’t decide until looked at each member twice
ID parade: what can a suspect do during/before?
Can choose position in line
Can change between witnesses
ID parade: what happens during?
1 at a time
Can ask member to speak, move or adopt particular posture Should first be asked if can identify from appearance only Be reminded chosen on appearance only Judge will give strong warning to treat ev with caution
ID parade: what should be done to guard against future disputes?
Colour photo/vid should be taken of parade to guard against future disputes
How does group identification work?
□ Witness sees suspect in informal group where other people passing/waiting and suspect capable of being seen at same time as other people
□ Police must reasonably expect that the witnesses will see ppls with broadly similar appearance as suspect
With suspect consent/covertly (take witness to where suspect likely to be at given time)
What happens during a confrontation with a witness?
Witness bought face to face with suspect at police station
Witness must be told:
1. person may or ma not be the person theyre to confront
2. If not that person, say so
Will usually take place in presence of suspects sol and when sus refused other procedures
Who decides what ID procedure to use?
Investigating officer with identification officer
Who is responsible for running the ID procedure?
Identification officer
Investigation officer will have NO involvement in conduct of identification procedure
Who can be an identification officer?
□ Officer not below inspector whos not involved with investigation
Must be in uniform
What must the identification officer explain to the suspect?
Purpose of procedure
Entitlement to free legal advice
Procedure to be followed inc right to have solicitor/friend present
If refuses to consent, that refusal may be given in evidence or may proceed covertly
If significantly altered appearance, may be given in evidence
Whether witness was shown photos before suspects identity known
That they/their sol will be provided with details of description of suspect as first given by witness
Why should a solicitor advise a suspect to agree to am ID procedure?
Because:
□ refusal may result in police holding less satisfactory form of identification procedure
□ Refusal admissible at trial and adverse inferences can be drawn that they refused because they thought they would be recognised by witness
When should a solicitor make representations to the investigating officer (and ensure reps are recorded in custody record) that they believe an ID procedure should be carried out?
If Police decide not to hold and have:
□ Suspect who disputes their involvement and willing to participate
□ Witness who believed that can identify
What should a solicitor do before a video ID procedure?
□Obtain first description from witness
□ Check images resemble suspect and ensure police get more images if don’t
□ Ensure distinctive features covered
What should a solicitor do when attending an ID procedure?
□ Check witnesses segregated
□ Check no unauthorised ppl present
□ Check number of witnesses and where to be kept before/after and route
What should a solicitor do if they believe an ID procedure is contaminated?
ask witness if discussed description of offender with anyone and ask concerns be noted in written record of procedure by identification officer
What should a solicitor do before an ID parade in addition to what should be done for a video ID?
Explain to client what will happen and to not do anything to draw attention to themselves
What written records should a solicitor make regarding an ID procedure?
Keep detailed record of what happens
Ensure identification officer complies with procedural requirements of code D Annex A
Record objections to conduct by identification officer
Record comments made during procedure
What ID procedure should a suspect be offered first?
Video UNLESS:
1. Not practicable
2. Identification parade more practicable and suitable
3. Officer in charge considers group identification is more suitable and identification officer considers it practicable
Can an ID procedure be uses if a witness recognised a suspect from a photo?
Yes but:
Before shown photo, record witnesses first description
Witness must be shown at least 12 photos at a time
Once made positive identification, no other witnesses should be shown the photos
Suspect/sol must be notified if witness attending identification prev shown photos/artists composite
At trial-witness not allowed to say originally identified from photo
What is an adverse inferences?
Means the court is likely to draw negative conclusion from Ds silence when interviewed/hold silence against them when they could have reasonably have been expected to make a defence
What are the adverse inferences that are likely to be drawn?
- Recent fabrication
- Defence not fabricated but thought it wouldn’t hold up to police questioning
Can a defendant be convicted on silence alone?
NO, prosecution must find other evidence of guilt before asking court to draw adverse inference
When can an adverse inference be drawn under s35?
1) D fails to mention in interview a fact relied upon at trial
2) That they could reasonable have been expected to mention at interview/on charge
Conditions to draw adverse inference under s35?
Must be interview under caution
Failed to mention before charge
Questioning at interview was trying to discover whether/by who alleged offence committed
Must be satisfied real reason for silence was they had no answer
If answered qs in subsequent interview, adverse inferences can still be drawn from silence in first interview
When can an adverse inference be drawn under s36 CJPOA 1994?
A person arrested has on/in his:
a. Person
b. Clothes/shoes
c. Possession
In place where they are at time of arrest
An object, substance or mark/mark on object AND
Another investigating case reasonably believes its presence may be attributable to participation in offence
PC informs suspect of this and asks to account for its presence
Sus fails to account for it
What must a suspect be told for an adverse inference to be drawn under s36?
What the offence is
What fact theyre asked to account for
That the officer believed this fact may be bc they took part in the commission of the offence
That the court may draw adverse inferences
That a record is being made of the interview and it may be given as evidence
When can an adverse inference be drawn under s37 CJPOA 1994?
□ Person arrested and found at place/about time the offence committed
□ That/another PC investigating reasonably believed the presence may be attributed to participation in commission of offence
□ PC informs sus of this and asks him to account for presence
□ Sus refuses to do so
What adverse inferences only apply when a defence is put forward and which ones operate irrespective of any defence?
If defence: s35
Irrespective of defence: s36/37
Which adverse inferences require a special warning that adverse inferences may be drawn?
All of them
Can an adverse inference be drawn if silence was because of legal advice?
Wont automatically prevent adverse inferences if subsequently raise fact relied upon
Jury will be directed by trial judge that adverse inferences should NOT be drawn if they reasonably believe that the D genuinely and reasonably relied on legal advice to remain silent
When may legal privilege be waived in respect of adverse inferences?
§ Once D (to prevent adverse inferences) gives the reasons for their solicitors advice to remain silent, legal privilege is waived
D (or their sol) may be cross-examined as to any other reason for sols advice to remain silent
When CANT adverse inferences be drawn?
- Accused not at an authorised place of detention
- Accused not been allowed to consult sol prior to questioning (complete right to silence)
- It appears to the court that the physical or mental condition of the accused makes it undesirable for them to give evidence (applied strictly, not just child with low IQ)
